Some Questions for Professor Denbeaux

As readers of this blog have probably figured out by now, I’m organizing an event this Tuesday at Felician University regarding racial profiling by the Police Department and Municipal Court in Bloomfield, New Jersey.* The claim alleging racial profiling has been made by Professor Mark Denbeaux of Seton Hall University Law School, who’s the featured speaker at the event. (I invited the mayor of Bloomfield, Michael Venezia, to send a representative from municipal government, but he declined the invitation himself and declined to send a representative. I also asked the Police Director through the Community Policing Unit, but never heard back; asked one member of the Town Council, who eventually declined; and asked one member of the Bloomfield Civic and Human Rights Commission, who also declined.)

As I’ve said several times before, I’ve taken no public stand on the findings of the report. Neither has Felician University and neither have any of the sponsors of the event.** In fact, I don’t have a stand to take, publicly or privately. Mostly I have a bunch of questions. As the discussant/moderator of the event, I have the prerogative of setting the agenda for the discussion period following the talk, but there’s no reason to think that the discussion will revolve around my questions in particular. So I thought I’d throw them out there on the blog, as food for thought, and as some rough indication of what we might discuss at the event itself. I may add a few questions if I think of any later. Feel free to come up with some of your own in the combox. 

  1. As a methodological matter, the report claims that its selection of Bloomfield was “random.” But it’s been alleged by Mayor Michael Venezia that the authors’ selection of Bloomfield wasn’t random; it was motivated by partisan and interested considerations. How do you respond? (I owe the preceding link to Bloomfield resident Carl Lorentzen).
  2. For the last several years, the Bloomfield Police Department has consistently been reporting decreases in the crime rate for Bloomfield. Isn’t that an indication of success in policing? And isn’t that success its own best argument for the methods the Police Department has been using?
  3. In the video “Driving While Black in New Jersey,” Bloomfield’s Police Director, Samuel DeMaio, rebuts the charge of racial profiling by asserting that the police simply go where the crimes are. Doesn’t he have a point, given the drop in crime rates? There is, in any case, good research to suggest that there is a race-specific differential offender effect. Thus Tillyer and Engel 2012 assert: “Analytic models indicated that Black drivers speed more frequently and engage in more severe speeding compared to White drivers, net of controls.” If so, wouldn’t we justifiably expect a higher frequency of stops, summons, searches, and arrests for black versus white drivers?
  4. I spent eight weeks this past spring as a participant in the Bloomfield Police Department’s Citizen Police Academy, where I met and dealt with a fairly wide range (though admittedly a small number) of police officers from Bloomfield. (I even met Michael Venezia and Samuel DeMaio.) None of them seemed like racists to me (including Venezia and DeMaio). No one said (or insinuated) anything racist. No one defended racial profiling. In fact, the one African American participant in the program was highly supportive of their efforts, as is Wartyna Davis, a Councilwoman-at-Large (who is herself African-American). How is it possible for a police department to engage in racial profiling if there doesn’t seem to be any racial animus in the people alleged to be engaging in it, and if the department seems to have significant support from African-American residents? Many people would find the allegation hard to accept under those circumstances.
  5. In the part of the report that deals with the municipal court (p. 15), you point out that Bloomfield Police squad cars have been alleged (in court) to have stopped cars outside of Bloomfield’s city limits (on the part of Bloomfield Avenue that lies in Newark). To a layperson, this would seem to be illegal, or at least disqualifying of the legal validity of a stop: aren’t Bloomfield police officers required to conduct stops in Bloomfield? But you say that that “[t]he jurisdiction argument was to no avail” in Bloomfield Municipal Court (p. 15). Could you explain the law here? Are legal stops conducted outside of jurisdiction valid or invalid? Is it legitimate for a judge to dismiss a jurisdictional argument without further consideration? If it’s not legitimate, is it grounds for disciplinary action against the judge? And how would such action take place?

It should go without saying (but on this topic, nothing really goes without saying) that these are questions. A question is a request for information. Yes, every question makes presuppositions that involve assertions, but it doesn’t follow that the questioner is necessarily endorsing the assertion implicit in the question.

So when I bring up Michael Venezia’s allegations in question #1, I shouldn’t be understood to be asserting them myself. When I ask whether a decreased crime rate implies success in the methods that brought it about in question #2, I shouldn’t be understood to be asserting that I myself believe that the methods have been successful, that they justify racial profiling, or even that the crime rate is down. Question #3 doesn’t imply that I endorse the differential offender hypothesis proposed by Tillyer and Engel 2012, and question #4, though phrased in the first person, doesn’t imply (or exclude the possibility) that I am one of the “many” referred to at the end. And so on.

I’ll have something to say about Bloomfield Township’s continuing pattern of studiously ignoring my existence and then taking petty jabs at the event I’m organizing once the event is over. This commentary will come in illustrated form, and feature a photograph of me standing next to the Police Director. You won’t want to miss it.


*The event takes place Tuesday, September 27 at 6:30 pm in the first-floor auditorium of the Education Commons Building at Felician University’s Rutherford campus, 223 (or 227) Montross Ave, Rutherford, New Jersey 07070. Free parking available in Lot D across the street from the venue.

**The event is co-sponsored by the Felician University Committee on Leadership and Social Justice, the University’s Department of Criminal Justice, its United Nations Fellows Program, and its Pre-Law Program.

8 thoughts on “Some Questions for Professor Denbeaux

  1. Pingback: Some Questions for Professor Denbeaux | Khawaja's Phil 250 Blog

  2. Pingback: Some Questions for Professor Denbeaux | Khawaja's Phil/Crim 380 Blog

  3. So here’s a quick postscript on this event, just as a record of what took place. Thanks to PoT-head Michael Young for making the trip down for the event, and for some excellent conversation on race, racism, racial profiling, and policing while he was down here. I know that at some point Michael will be blogging on some of these issues here at PoT.

    The turn-out for the event was good: I counted about 100 attendees, mostly from Felician, but some from outside of the University, including (I’m told) John Russo, the police chief of Rutherford, the town in which the event took place. Professor Denbeaux gave an excellent presentation, about 35 minutes long, summarizing the Seton Hall report. We had a productive discussion afterwards, about 45 minutes long.

    The comments in the discussion fell into two broad categories, which might be described as testimonial-cathartic and analytic.

    By “testimonial-cathartic,” I mean comments responding to Professor Denbeaux that were intended to offer anecdotes or emotional reactions to it, underscoring the reality and adverse effects of profiling on real-life individuals present in the room. There were a lot of these, too many to summarize adequately. Some came from people who felt that they’d been profiled. Some came from people who simply wanted to express gratitude that someone was taking their concerns seriously. One Felician faculty member (and member of the inviting committee), Carol Manigault, lost a son to an encounter with the police, and that was on many of our minds as she spoke.* A Felician trustee, Leland McGee, also a member of the committee (and co-leader of the discussion), spoke of the work he was doing with an activist group in central Jersey, Social Justice Matters. Though not exactly “testimonial-cathartic,” one participant made the practical suggestion that law schools like Seton Hall set up pro bono clinics or services to help people deal with Police Divisions of Internal Affairs (the division of a police department that processes and deals with citizen complaints about police misconduct). Professor Denbeaux was clearly taken by the idea.

    Another participant, someone in law enforcement, asked for guidance about what exactly it was that activists wanted from law enforcement in the way of improvement in police-civilian relations. Professor Denbeaux suggested that police departments make incremental reforms. (He didn’t literally say this, but I think he had something like this in mind.) He also made what I regarded as the spot-on suggestion that we stop focusing so intensively on spectacular (or spectacular-looking) injustices like police shootings, and focus on more “boring” and mundane things, like traffic stops and municipal court activity–calling on students and citizens to spend some time sitting around in municipal courts, observing them, and drawing non-theory-driven conclusions about what goes on there. I couldn’t agree more. (A former student of mine, Maria Lopez, now working for the New Jersey Public Defender’s Office, pointed out that Professor Denbeaux’s research coheres with the research of Frank Baumgartner [I believe it was], one of her mentors at UNC Chapel Hill Law School. I’ll see if I can get more specifics on this in a bit.)

    I suggested (in response to the same question) that people in law enforcement ought to be more receptive than they typically are to experiences that aren’t discussed in the police academy and aren’t a matter of literal adjudication or consent decrees, but are nonetheless real. For instance, law enforcement might consider the possibility that the now-ubiquitous slogan “If you see something, say something” abets irrationality, paranoia, irresponsibility, and racism, especially in the suburbs. In my own experience, the slogan has become an all-purpose tool for suburban busy-bodies with the urge to call 911 whenever they see an “anomaly” in their neighborhood, e.g., when they see someone walking through the neighborhood who, in their estimation, “looks out of place” or “doesn’t belong there.” What this seems to mean is that people who “look as though they don’t belong” somewhere are snitched on by anonymous informants, who call the police on the slightest pretext, refusing to think about the reasons why they feel the need to call, and being absolved by the police themselves, who encourage the practice on the grounds that having a reason for suspicion is a police matter, not a matter of civilian judgment. The predictable result is paranoia and supposedly cost-free stops, searches, frisking, and risk of violence–cost-free to the person who makes the call, but not cost-free to the person on the receiving end. Law enforcement seems to swear by the “see something, say something” mantra, but the time has come to question it.

    By “analytic” comments, I mean comments focused on questions of the sort I posed in the original post above, especially questions (2)-(4). As someone with both testimonial-cathartic and analytic things to say on the subject myself, I have to confess to a certain discomfort at the ratio of testimonial-cathartic to analytic discussion at the event: there was more of the former than the latter than I’d wanted. The result almost seemed like an illustration of Michael Oakeshott’s conception of discourse–a conversation, rather than a seamless sequence of arguments. It’s not the way a philosophy discussion would have gone, and it raises interesting questions about the presuppositions and expectations that philosophers bring to a a “Q&A.” But more on that some other time.

    Questions (3) and (4) explicitly came up, with (2) an implicit presupposition of (3). (I’m the one who asked them.) In effect question (3) grants the racially disparate impact that shows up in Professor Denbeaux’s statistics, but queries the inference to racism: how does disparate impact entail or even just indicate racism on the part of those producing it? After all, police departments can justifiably say that they go where the crime is, and if they do, and if certain demographic groups produce crime in disproportionate numbers, it cannot be racist either to produce racially disparate impact in rates of search, seizure, conviction, and punishment or to reproduce it. That’s just what “going where the crime is” is, and looks like. Professor Denbeaux’s response was (in effect) that “going where the crime is” is either misleading or involves a self-fulfilling prophecy. Given the amount of discretion that police chiefs and patrol officers wield, they decide to go wherever they want to go, and wherever that is tends to turn into “where the crime is” simply because crime turns up wherever you concentrate the resources to find it. This claim has an added plausibility given the equivocality of the term “crime.” If any offense is a crime, including offenses used in a purely pretextual way for a further stop, then it’s extremely easy to fine criminality almost anywhere: most drivers violate some traffic laws. And it’s an open question whether drug offenses should be crimes in the first place. But they are.

    A bit of local lore: In Bloomfield, the speed limit on North Broad Street is 25 mph, but no one ever obeys it. If the police wanted to, they could treat the (predominantly white) north end of town as they treat the (predominantly black) south end, holding people to what turns out to be a ludicrously unrealistic speed limit. But they don’t do that. They spend their energies on the south side of town, the part that abuts Newark and East Orange. Another hidden secret: a police department that really wanted to up its revenue could hand out parking tickets galore on the Jewish High Holidays, since parking around local synagogues is tight (e.g., Temple Ner Tamid on North Broad Street), and tight parking usually leads to illegal parking. But they don’t do that, either. Nor am I suggesting that they should. I’m just suggesting that they could–and don’t.

    A social science footnote: though I granted the claims of Tillyer and Engel 2012 ex hypothesi in the original post, I actually think that the study is full of holes. It just happens to be one of the first Google hits for “differential offending hypothesis, racial.” It’s not that there’s nothing to the hypothesis; it’s that the abstract of the study overhypes its conclusions, which are more modest and qualified than a casual reader would be led to believe.

    That said, though I take Denbeaux’s point, I think it ultimately leads us to a so-far unresolved chicken-egg problem regarding police discretion, disparate impact, and differential offending. Are the police going where there independently antecedently happens to be more crime, and then uncovering more black crime because there just is more black crime? Or are they uncovering a greater frequency of black crime because they find crime wherever they happen to go, and for reasons independent of crime rates, they tend to target black neighborhoods and then claim to have “gone where the crime is” in a self-fulfilling prophecy of circular logic? I suspect that the hypotheses are more complicated than these two questions by themselves would seem to suggest, but this isn’t the place to work out all the options and spell out all the relevant variables. I’ll just say that it’s a task that needs to be done (and of course, is being done).

    We only scratched the surface of question (4) at the event itself, but Michael and I spent the better part of the next few days discussing it on our own. Let me sketch some of that discussion in a separate comment.

    Another topic discussed was the relationship between police work, education, and psychological counseling: what do police officers learn at the Police Academy about how to deal with the mentally ill? The question of what police officers learn and are taught at the Academy is probably one that deserves more discussion than we were able to give it. I personally have my doubts that police officers are taught anything like an adequate version of constitutional criminal procedure, whether at the Academy or anywhere else. But that, I suppose is a topic for another event.

    *Some alternate perspectives on this tragic event: The New York Times’s coverage; the judgment of the U.S Court of Appeals for the Third Circuit, on litigation relevant to the case; Professor Manigault’s own version of events (and that of the Institute she founded in her son’s honor and memory).

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  4. Question (4) asks whether we really need to invoke racism to explain racially disparate impact. In a way (4) is similar to (3), since (3) likewise challenges the supposition that racism is involved. But someone asking question (4) could grant that disparate impact is problematic or even culpable while disputing whether what’s problematic or culpable about it is best described as “racism.”

    Suppose that you regard the racially disparate impact of the Bloomfield Police Department’s policies as troubling or even wrong. But suppose (ex hypothesi) that you know every single member of the police department, from the police director on down, and are not convinced that any of them are racists. Even if you thought that they were doing something wrong, and even if you observed that the impact of their actions fell disproportionately on “persons of color,” you would still have reason to insist that “racism” misdescribed (overdescribed) the wrongness of the action. Perhaps it makes more sense to say something like this.

    (1) The Police Department is in the grips of certain problematic stereotypes about race and criminality, and relies–or overrelies–on these stereotypes as a heuristic for crime-fighting. This is problematic, but it’s not racism. All of us rely on stereotypes, some of them racial or ethnic. But even if our doing so is wrong, and even if the wrongness implicates race, it’s overkill to call it racism, or to indict all of us of racism. “Racism” is a fraught, character-assassinating word. But the phenomenon in question isn’t appropriate to a word of that nature (nor is the word appropriate to the phenomenon). Perhaps we need to invent another vocabulary to describe what’s going on, but the ritual invocation of “racism” is too blunt and too crude.

    (2) Michelle Alexander has argued, in The New Jim Crow, that the “racism” involved in what she calls “The New Jim Crow” (i.e., the system of mass incarceration consequent on the American “War on Drugs”) is not primarily a matter of overt and explicit racism, but of “racial indifference (defined as a lack of compassion and caring about race and racial groups)” (p. 203, emphasis in original). It is not, as she puts it fundamentally a matter of “racial hostility.”

    In practical terms, racial indifference expresses itself in police work as a willingness to treat African Americans as the “low hanging fruit” of police work, or the collateral damage of a narrow focus on “productivity” defined in a myopically bean-counting way. Suppose that police departments demand “data-driven accountability” of police officers for purposes of “retention and promotion” (to use the academic terminology). This means that officers have to “keep their numbers up,” where the numbers in question refer to stops, searches, arrests, and so on. Suppose it just happens to be easier to go after African Americans for this purpose, in part because being African-American may overlap with being relatively defenseless, legally speaking, or relatively exposed. Or suppose that going after them just happens to maximize the numbers.

    If this is right, officers could be focusing on properties of African Americans that have nothing to do with their being African American (i.e., with race) and yet be differentially focusing on African Americans for other problematic reasons. In other words, the police may be targeting African Americans not qua racial group but qua easy pickings for a system that has (for non-racial reasons) come to thrive on easy pickings. That is wrong (morally wrong), but the wrongness is not necessarily racial, or perhaps not necessarily racist. Put yet another way, the willingness to regard someone as expendable or as counting for less need not be racism if race is not what the targeter is focusing on. It seems odd to say this, but the targeter may be treating members of the target group as expendable, not because they are members of a given race but despite the fact that they are members of that race. A race may become expendable for reasons that correlate strongly with membership in that race, but for reasons that do not make any reference–whether overt or covert–to race. The question arises, is that racism? And perhaps the answer is “no.”

    I’ve just sketched the topics that Michael and I batted around from Tuesday (when he got here) until Thursday (when he left). I don’t have time even to sketch the (seemingly continuous) discussion we had on those topics. (We had a complex set of agreements and disagreements, stemming, among other things, from differing conceptions of the meaning of the concept of ‘racism’ and from different conceptions of moral judgment as well.) But maybe we can have some of it here at PoT in the weeks and months to come.

    For whatever it’s worth, I should probably mention something Professor Denbeaux went out of his way to mention: Bloomfield’s current Police Director, Samuel DeMaio, was previously the head of police in Newark, which is currently in federal receivership under a Justice Department consent decree, asserting

    a pattern or practice of unconstitutional stops, searches, arrests, use of excessive force and theft by officers in violation of the First, Fourth and 14th Amendments. The proposed consent decree also resolves the department’s findings that NPD’s law enforcement practices had a disparate impact on minorities in Newark.

    Though the consent decree covers some of the time during which DeMaio was Police Director in Newark, the truth is that he’s gotten a generally positive reception for the work he did in Newark (under Mayor Cory Booker, now a Democratic Senator from New Jersey), even by civil libertarians. I’ve met DeMaio, however briefly, and found him to be an eminently likable and straightforward person (like much of the Bloomfield Police Department). In short, if there are claims to be made about racism or racial profiling by the Bloomfield or Newark Police Departments (or departments like them), they’re likely to involve more complexity than much contemporary discourse would lead us to expect.

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  5. Though question (1) didn’t explicitly come up in the Q&A, Professor Denbeaux pre-emptively answered it during his talk: he pointed out that Bloomfield was chosen by his students, not by him, for two reasons: (a) it was a representative, predominantly white (but mixed race) suburb bordering the predominantly African American cities of Newark and East Orange; and (b) it was easy for his students to get to.

    Reason (b) has gone under-discussed in the recent controversy, but is obvious to anyone who knows traffic patterns around here: Seton Hall Law School is at 119 Raymond Blvd in Newark, and Bloomfield Police Department and Municipal Court is at 1 Municipal Plaza, Bloomfield. The Law School is a ten-minute walk to the New Jersey Transit rail station at Broad Street (Newark), which is, in turn, a cheap ten minute train ride to Bloomfield. The Bloomfield municipal building is itself a five minute walk (or less) from the Bloomfield rail station. That makes Bloomfield the most easily accessible suburb from Newark by mass transit. A look at the map and some local knowledge make clear that there is no other competitor:

    https://www.njtransit.com/sf/sf_servlet.srv?hdnPageAction=TrainSchedulesMapTo

    In short, Mayor Venezia’s insinuations, as reported by the NorthJersey.com report to which I linked in the original post, seem spurious. Even if they ended up being true, they would indicate nothing of great significance, and nothing subversive of the claims of the report. Viewed in the context of the obvious face value reasons for studying Bloomfield, the insinuations amount to nothing but aimless conspiracy-theorizing.

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  6. Pingback: Against Unity: A Response to Mayor Michael Venezia (Bloomfield, New Jersey) | Policy of Truth

  7. Pingback: Felician University Event: “Community Policing in Rutherford” | Policy of Truth

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