OVERWHELMING VOTES IN the House and Senate to enact driver safety legislation belie enduring disagreements within the Legislature over how best to monitor and tamp down racial bias by police.
The bill that was sent to Gov. Charlie Baker on Wednesday is now virtually guaranteed to become law, but the legislation was formed in an odd fashion that saw the usually veiled negotiations between House and Senate tumble into the public eye.
The primary goal of the bill is to ban the use of handheld cell phones while driving, but the biggest disagreement stemmed from the secondary goal of measuring and discouraging racial profiling – whether subconscious or intentional.
The Senate proposed mandating that police mark down the race of the driver at every single traffic stop, but the House ultimately won out with its plan to pretty much keep the status quo of mandating that police document the driver’s race only when they issue a ticket, write a warning, or make an arrest after a traffic stop. The compromise bill includes some changes in how that data will be handled.
A criminal justice expert whom House Speaker Robert DeLeo has relied on previously in drafting legislation and who played some role in the distracted driving negotiations takes a dim view of the approach agreed to by the conference committee of House and Senate lawmakers.
Jack McDevitt, who is director of the Institute on Race and Justice at Northeastern University and who was a top advisor to DeLeo on gun safety legislation five years ago, said in order to accurately collect data on racial profiling, police should be required to collect data on all traffic stops.
“It has to be all stops to be an accurate measure,” McDevitt said in a phone interview. “A good police department anywhere would be better if they were tracking traffic stops. And I know some police departments in Massachusetts do.”
McDevitt helped write a 2004 study that looked at some data from all traffic stops in Massachusetts, and found that black and Latino drivers were stopped at disproportionately high rates, and there were similar racial disparities in the issuance of citations.
McDevitt said that when the bill was subjected to closed-door conference committee negotiations, he wrote a memo to Sen. William Brownsberger, a Belmont Democrat and one of the Senate negotiators, but neither he nor Brownsberger would disclose exactly what that memo said.
Rep. William Straus, a Mattapoisett Democrat who was the lead negotiator for the House, said he has seen no academic research to support McDevitt’s view that data from all traffic stops are needed.
“That’s really an opinion on his part, and I don’t view that as a scientific assessment,” said Straus, the House chairman of the Transportation Committee. The bill includes several enhancements to guard against racial profiling or subconscious bias by police, Straus said.
McDevitt hadn’t seen the compromise language on collecting racial bias data, but he said Massachusetts would be a rarity in collecting data only on certain traffic stops, and he said collecting data on all stops would not be that difficult.
“Thousands of police departments across the country collect that data, so it isn’t difficult,” said McDevitt. He noted there was briefly a statewide requirement in Massachusetts to collect racial data on all traffic stops. “Some police officers don’t like it. They feel like they’re being scrutinized unfairly. Some police chiefs didn’t want to continue it. They felt that there wasn’t a problem.”
Since the turn of the century, the uniform citation – which police issue for traffic tickets, written warnings, and arrests that follow a traffic stop – has included a little box for police to record the driver’s race. The bill sent to the governor on Wednesday will create new channels for analyzing that data, which would include new information about the driver’s age and the time of day the stop occurred, Straus said. Including the time of day that stops occur could strengthen efforts to discern racial bias because it is easier to see a driver’s race during the daytime, Straus said.
The House adopted the compromise language by a vote of 153-1 on Tuesday, and the Senate sent the bill to the governor by a vote of 38-1 on Wednesday. The two no voters – Rep. Chynah Tyler, a Boston Democrat, and Sen. Rebecca Rausch, a Needham Democrat – both agree with the underlying goal of outlawing dangerous use of cellphones by drivers, but think police should be required to document racial data on every traffic stop, not just those that result in citations.
Straus said collecting data on all stops would confuse things by including information on stops that are unrelated to law enforcement, such as a police officer flagging down a friend to chat. There are already stores of data on the racial makeup of drivers who were issued citations, so keeping that as the standard would provide a consistent stream of data from police, Straus said.
Disagreements between the House and Senate over the racial data collection proved the biggest hurdle towards agreeing on language to send to the governor.
The bill was an early priority for Baker and legislative leaders, but after passing varying versions this spring and entering conference committee negotiations on June 10, the lawmakers hit some snags.
Last summer, Senate President Karen Spilka told the State House News Service that an “agreement in principle” had been achieved by conference committee negotiators. The House negotiators signed off on a proposal and left it at the House clerk’s office, but senators were not satisfied. But then, without much explanation, the Senate negotiators refused to sign off on a proposal that would have collected data only on stops that result in a citation.
That public disagreement pulled back the curtain a smidgen on the closed-door negotiations. In September, Spilka told Boston Public Radio that the reason no agreement had been finalized was the Senate wanted to ensure that the data collection was “enforceable.”
The compromise that finally emerged this week went with the House approach (collecting racial data only for stops where citations are issued) and dropped the Senate approach, which called for the collection of racial data on all traffic stops.
While House and Senate negotiators were tight-lipped during the ensuing negotiations, Straus on Tuesday said that the House made a “significant concession” in the way the compromise bill handles privacy. Instead of destroying records after a few years, as the House had originally proposed, the compromise instead chooses to protect people’s anonymity by using encryption. The bill calls for a university or non-profit institution to conduct a study on the data provided by the Registry of Motor Vehicles every year. Separately, the bill would also require the administration to publish aggregate numbers, which Straus said caters to requests made by the American Civil Liberties Union, which could conduct its own analysis of those aggregate numbers.
But the ACLU of Massachusetts criticized the compromise bill, saying it “simply repackages existing law on data collection and imposes new limits on data access.”
Rep. Timothy Whelan, a Brewster Republican and former State Police sergeant who also served on the conference committee, was unaware of McDevitt’s earlier findings about black and Latino drivers being stopped at disproportionately high rates and he also claimed that the State Police only collect racial data on stops that result in citations, including written warnings. In fact, the State Police is one of the law enforcement agencies in Massachusetts that already collects racial data on all traffic stops.
“We record race data on every stop, even those that result only in verbal warnings,” State Police spokesman Dave Procopio said in a statement.
Informed of Procopio’s comments, Whelan noted he has been retired from the force for six years and learning of the State Police policy to collect data on every stop does not change his view.
Whelan also said that even though it is exceedingly rare for a state trooper to pull someone over and not issue a ticket, written warning, or make an arrest, it would be burdensome to require police to record racial data on every single stop.
“Law enforcement is floating on a sea of paperwork as it is right now,” said Whelan, contending that the language adopted by both House and Senate will provide “accurate and complete data.”
The former State Police sergeant estimated that he had pulled over roughly 10,000 drivers in the course of his career, and all but 100 of those stops resulted in either an arrest, citation, or written warning.
The bill also empowers the secretary of public safety and security to require a police department to collect racial and other data on all stops if the agency appears to have engaged in racial or gender profiling. The bill also calls for a study into the feasibility of expanding the data collection to record the race and gender of all drivers who are stopped, and all of those who are frisked or subjected to a search.
Rep. Nika Elugardo, a Jamaica Plain Democrat who has made sometimes controversial efforts to confront structural racism in state government, not only voted for the compromise, but made a speech on the House floor addressing some of the criticisms from those who say it does not go far enough in curbing racial profiling.
After the vote, Elugardo said she agreed that data on the race of every driver stopped would be needed to obtain a fuller understanding of racial profiling, but she described the bill as a step in the right direction.
“Until we get to all stops, we’re not going to be able to end racial bias,” Elugardo said. “We’re not going to get the full picture on racial profiling without that.”