Transparency: A new role for police consent decrees

Columbia Journal of Law and Social Problems

Volumn 42, Issue 1, 2008, Pages 129-176

  Kupferberg, Noah ^a  

^a The Earth Institute at Columbia University

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[No Author keywords available]

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EID: 58049135086     PISSN: 00101923     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (208)

1. Samuel R. Gross & Deborah Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. 1413, 1413 (2002).
2. 392 U.S. 1, 30 (1968).
3. Andrew Gelman, Alex Kiss, & Jeffrey Fagan, An Analysis of the NYPD's Stop- And-Frisk Policy in the Context of Claims of Racial Bias, Columbia Pub. Law Research Paper No. 05-95 at 3 (2006), available at http://ssrn.com/abstract=846365.
4. For example, in Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000), one of the most recent expansions, the Supreme Court held that the defendant's "presence in an area of heavy narcotics trafficking," as well as his "unprovoked flight upon noticing the police," satisfied the reasonable suspicion standard.
5. See David Johnston & Steven A. Holmes, Experts Doubt Effectiveness of Crime Bill, N.Y. TIMES, Sept. 14, 1994, at A16.
6. See 42 U.S.C. § 14141 (2000). Section 14141 states (a) Unlawful conduct It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. (b) Civil action by Attorney General Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
7. For example, a 1999 Gallup poll found that 81 percent of those polled, across racial lines, disapproved of racial profiling (defined as the police practice of stopping people of particular racial or ethnic groups in the belief that they are more likely to commit certain crimes). See Gross & Livingston, supra note 1, at n.l (citing Gallup Poll, Sept. 24, 1999-Nov. 16,1999).
8. In a poll taken September 14, 2001, 58 percent of those polled favored "requiring Arabs, including those who are U.S. citizens, to undergo special, more intensive security checks before boarding airplanes in the U.S.." Gross & Livingston, supra note 1, at n.2 (citing Gallup Poll, Sept. 14, 2001).
9. David A. Harris, New Risks, New Tactics: An Assessment of the Re-Assessment of Racial Profiling in the Wake of September 11, 2001, 2004 UTAH L. REV. 913, 914 (citing Dennis Niemic & Shawn Windsor, Arab Americans Expect Scrutiny, Feel Sting of Bias, DETROIT FREE PRESS, Oct. 1, 2001, at 1A).
10. Murad Hussain, Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling, 117 YALE L.J. 920, 924 (2008) (citing William Kates, Poll: Many Would Limit Some Rights of Muslims, PHILA. INQUIRER, Dec. 19, 2004, at A32; Lydia Saad, Anti-Muslim Feelings Fairly Commonplace, Gallup Poll, Aug. 10, 2006, available at http://media.gallup.com/WorldPoll/PDF/ AntiMuslimSentiment81006.pdf).
11. In the weeks after 9/11, "federal dragnets targeted thousands of immigrants from Muslim-majority countries, detaining some for as long as five years." See Hussain, supra note 10, at 924.
12. See, e.g., PHILIP B. HEYMANN & JULIETTE N. KAYYEM, PROTECTING LIBERTY in an AGE OF TERROR 102 (MIT Press 2005) (arguing that "[g]iven what we know about terrorist organizations, who and how they recruit and how they plan their attacks, groups of persons identifiable by some unchosen characteristic may reduce the pool of people on which law enforcement must concentrate"); Gross & Livingston, supra note 1, at 1437 (The September 11 attacks and the threat of future terrorism clearly require an intensive investigation. Given the extremity of the threat and identity of the known terrorists, the government is justified in focusing that investigation on Middle Eastern men despite the fact that the public decision to do so has caused understandable pain and anxiety for many Arab Americans.").
13. See Timothy M. Ravich, Is Airline Passenger Profiling Necessary?, 62 U. MIAMI L. REV. 1, 40-41 (2007) (citing Editorial, The 'Profiling' Debate, WALL ST. J., Aug. 19, 2006, at A10) (arguing that avoiding racial profiling in airport screening has led to "a policy of random searches that focuses scarce resources as much on eight-year-old girls as on 22-year-old men with Pakistani passports"); Stuart Taylor Jr., The Case for Using Racial Profiling at Airports, NAT'L J., Sept. 22, 2001, at 2877 (arguing that "the mathematical probability that a randomly chosen Arab passenger might attempt a mass-murder-suicide hijacking - while tiny - is considerably higher than the probability that a randomly chosen white, black, Hispanic, or Asian passenger might do the same").
14. Floyd Abrams, the celebrated First Amendment lawyer, said that in the wake of the bombings, "it seems entirely appropriate to look harder at such people. Remember, Justice [Robert] Jackson said 'the Constitution is not a suicide pact.'" Gross & Livingston, supra note 1, at 1414 (citing Henry Weinstein et al., Racial Profiling Gains Support as Search Tactic, L.A. TIMES, Sept. 24, 2001, at A1).
15. This is not to say, of course, that arguments against profiling have disappeared in the wake of 9/11. In fact, the voices in opposition have made themselves plainly heard in the ongoing debate. See, e.g., David Rudovsky & R. Richard Banks, Racial Profiling and the War on Terror, 155 U. PA. L. REV. 173, 177 (2007) (arguing that "[t]he most notorious and ineffective government national security programs have been built on racial stereotypes," and citing the Palmer raids and the Japanese internment as examples); Ravich, supra note 13, at 7-9 (summarizing the main concerns still voiced by profiling critics after 9/11).
16. Patrick McGreevy, LAPD Faces 3 More Years of Scrutiny, L.A. TIMES, May 16, 2006, at B1.
17. Patrick McGreevy, Case Not Closed Yet for LAPD, L.A. TIMES, Apr. 20, 2006, at Bl.
18. Jeremiah Marquez, $70 Million Will Settle Rampart Scandal Costs, CONTRA COSTA TIMES (Walnut Creek, CA), Apr. 1, 2005, at f4.
19. Rick Orlov, LAPD Consent Decree Wins Council OK, L.A. DAILY NEWS, Nov. 3, 2000, at N1.
20. Beth Barrett, Rampart Scandal Haunts LAPD, L.A. DAILY NEWS, Oct. 2, 2004, at N10.
21. Id.
22. Marquez, supra note 18.
23. Jim Newton, Council Backs U.S. Demand to Reform Police, L.A. TIMES, May 10, 2000, at A1.
24. Id.
25. Id.
26. Id.
27. Tina Daunt, 4 Named to Negotiate on Police Reform, L.A. TIMES, May 12, 2000, at B11.
28. Id.
29. Tina Daunt, U.S. Presents Demands to LAPD, L.A. TIMES, June 2, 2000, at B1.
30. Tina Daunt, Riordan, Parks Give in on LAPD Consent Decree, L.A. TIMES, Sept. 16, 2000, at A1.
31. Tina Daunt, City Agrees to U.S. Reforms for LAPD, L.A. TIMES, Sept. 20, 2000, at A1.
32. Tina Daunt, Judge Is Assigned to Enforce Police Reform, L.A. TIMES, Nov. 4, 2000, at B1.
33. Id.
34. Id.
35. David Rosenzweig, Judge to Have Last Word on LAPD Consent Decree Monitor, L.A. TIMES, Feb. 9, 2001, at B2.
36. Tina Daunt, Consent Decree Gets Federal Judge's OK, L.A. TIMES, June 16, 2001, at C1. For an extensive profile of Cherkasky, see Tina Daunt, N.Y. Mob Prosecutor to Take on the LAPD, L.A. TIMES, July 24, 2001, at C1.
37. See Daunt, supra note 36.
38. Consent Decree, United States v. Los Angeles, No. 00-11769 GAF (CD. Cal. June 15, 2001), available at http://www.lapdonline.org/assets/pdf/final- consent-decree.pdf [hereinafter Los Angeles Consent Decree].
39. Id. ¶I (A)(11).
40. Id. ¶ II(A)(39).
41. Id. ¶ II(A)(50).
42. Id. ¶ II(B)(54).
43. Id. ¶ III(B)(70-3).
44. Id. ¶III(H)(103).
45. Id.¶ III(H)(104-5).
46. Id. ¶ XII(A)(176).
47. Id.¶ XII(A)(177).
48. Id. ¶ XII(B)(179).
49. For an extensive examination of the history of racial profiling by the New Jersey State Police, see David Kocieniewski & Robery Hanley, An Inside Story of Racial Bias and Denial; New Jersey Files Reveal Drama Behind Profiling, N.Y. TIMES, Dec. 3, 2000, at 153.
50. New Jersey Advisory Committee on Police Standards, Report and Recommendation to Governor Jon S. Corzine Pursuant to Executive Order No. 29, Dec. 7, 2007, at 17, available at http://www.state.nj.us/acps/ njacps-final-report.pdf.
51. 324 N.J. Super. 66 (Law Div. 1996).
52. New Jersey Advisory Committee, supra note 50, at 17.
53. Soto, 324 N.J. Super, at 69.
54. For more on Soto, see William H. Buckman, Racial Profiling: Truth and Consequences, 233 N.J. LAW. 16, 17-18 (2005); Abraham Abramovsky & Jonathan I. Edelstein, Pretext Stops and Racial Profiling After Whren v. United States: The New York and New Jersey Responses Compared, 63 ALB. L. REV. 725, 743-44 (2000).
55. David Voreacos, Peek at N.J. Troopers' Future? Federal Cuffs Chafe Pittsburgh Police, N.J. REC., Mar. 8, 1999, at a01.
56. Christopher Mumma & Ovetta Wiggins, Two Troopers Indicted in '98 Shootings, N.J. REC., Sep. 8, 1999, at a01. For a detailed description of the incident, see Jim Dwyer, Cops Ignored Pleas-Passenger, N.Y. DAILY NEWS, Apr. 30, 1998, at 8.
57. New Jersey Office of the Attorney General, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, Apr. 20, 1999, at 4, available at http://www.state.nj.us/lps/intm-419.pdf.
58. Kathy Barrett Carter, N.J. Troopers Show Bias in Stops, State Concedes, NEWARK STAR-LEDGER, Apr. 21,1999, at 1.
59. Mumma & Wiggins, supra note 56. See also, Carter, supra note 58, at 1. The product of two months of work by more than 70 investigators from the State Police and the Division of Criminal Justice in the Attorney General's Office, the report concludes that those engaging in racial profiling are divided into two categories. There is a small group of hard-core profilers engaged in "willful misconduct." There is also a larger group that, consciously or unconsciously, targets minority motorists because of lack of supervision, pressure to make arrests, a desire to advance personally and simple reliance on racist stereotypes rather than sound policing techniques. Id.
60. Debra Lynn Vial, 4 Subjects of Turnpike Shooting File Lawsuit, N.J. REC., Apr. 23, 1999, at a01.
61. Mumma & Wiggins, supra note 56, at a01.
62. Tom Avril, N.J., U.S. Agree on Steps to Prevent Profiling, PHILA. INQUIRER, Dec. 23, 1999, at A01.
63. Id.
64. Judge Picked to Rule on Trooper Reforms, NEWARK STAR-LEDGER, Dec. 30, 1999, at 42.
65. News Release, United States Department of Justice, Independent Monitor Team Chosen to Monitor New Jersey's Efforts to Implement Terms of Consent Decree Entered Into With the Justice Department, Mar. 29, 2000, available at http://www.usdoj.gov/opa/pr/2000/March/150cr.htm.
66. Charles Toutant, Texan and Newark Lawyer Gear Up for Joint Monitoring of State Police, 160 N.J. L.J. 193 (2000).
67. Stipulation of Settlement, United States v. State of New Jersey, Civil No. 99-5970 (D.N.J. Dec. 30, 1999), available at http://www.nj.gov/oag/jointapp.htm.
68. Id. ¶¶ 26-28. This provision tracks the language of Terry v. Ohio, 392 U.S. 1, 30 (1986).
69. Id. ¶¶ 29.
70. Id. ¶¶ 40-46.
71. Id. ¶¶ 58-59, 62.
72. Id. ¶¶ 93-101.
73. Id. ¶ 114.
74. Id. ¶¶ 115-21.
75. Id¶. ¶ 131.
76. 198 F.R.D. 409 (S.D.N.Y. 2001).
77. Press Release, Center for Constitutional Rights, CCR Achieves Historic Settlement In Street Crimes Unit Class Action (Sept. 18, 2003), http://ccrjustice.org/newsroom/pressreleases/ccr-achieves-historic-settlement- street-crimes-unit-class-action [hereinafter CCR Press Release].
78. Center for Constitutional Rights, Daniels v. the City of New York (last visited Aug. 25, 2008) available at http://ccqustire.org/ourcases/past- cases/daniels%2C-et-al.-v.- city-new-york [hereinafter CCR Daniels Page].
79. The SCU was "an elite commando unit of more than 300 police officers that patrolled the streets at night in unmarked cars and in plain clothes." Id. For an in-depth portrait of the SCU at the time of the shooting, see David Kocieniewski, Success of Elite Police Unit Exacts a Toll on the Streets, N.Y. TIMES, Feb. 15, 1999, at Al.
80. Daniels, 198 F.R.D. at 411.
81. Michael Cooper, Officers in Bronx Fire 41 Shots, and an Unarmed Man Is Killed, N.Y. TIMES, Feb. 5,1999, at A1.
82. See Ginger Thompson, 1,000 Rally to Condemn Shooting of Unarmed Man by Police, N.Y. TIMES, Feb. 8, 1999, at B1; Kevin Flynn, Police Killing Draws National Notice, N.Y. TIMES, Feb. 8, 1999, at B5; Andy Newman, Prayer in New York, Protest in Washington, N.Y. TIMES, Feb. 16,1999, at B5.
83. For a consideration of the many strong reactions, see Joel Dreyfuss, Wake-up Call, SALON.COM, Feb. 12, 1999, http://www.salon.com/ news/1999/02/12newsc.html.
84. "In 1997 and 1998, 35,000 of the 45,000 stop-and-frisks reported by the SCU did not result in an arrest. A statistical analysis of reported stop-and-frisks released by the New York State Attorney General in December 1999 revealed that the SCU stopped 16 African-Americans for every arrest made." CCR Daniels Page, supra note 78.
85. Id. See also David Hinckley, Cautionary Tale: Springsteen and Diallo, N.Y. DAILY NEWS, Sept. 24, 2004, at 41.
86. CCR press release, supra note 77.
87. CCR Daniels page, supra note 78.
88. Id.
89. Daniels v. City of New York, No. 99 Civ. 1695, 2007 WL 2077150 (S.D.N.Y. July 16, 2007).
90. Stipulation of Settlement, Daniels v. New York, No. 99 Civ. 1695 (S.D.N.Y. Sept. 24, 2003), available at http://ccrjustice.org/files/ Daniels-StipulationOfSettlement- 12-03-0.pdf [hereinafter Daniels Stipulation of Settlement].
91. The ten named plaintiffs in the case received a total of $167,500 from the NYPD. CCR Press Release, supra note 77.
92. Daniels Stipulation of Settlement, supra note 90,¶ P.
93. Id. ¶ C(1).
94. Id. ¶ C(4).
95. Id. ¶ E(3-5).
96. @ Id. ¶ F(1). This was a particular concern, and a fundamental one. Investigators for the Civilian Complaint Review Board had determined by April of 2000 that in nearly half of the SQF cases they investigated, no UP-250 report was ever filed. William K. Rashbaum, Review Board Staff Faults Police on Stop-and-Frisk Reports, N.Y. TIMES, Apr. 28, 2000, at B1.
97. Daniels Stipulation of Settlement, supra note 90,¶ F(5).
98. Id. ¶ D(1).
99. Id. ¶ D(4).
100. Id. ¶ I(2).
101. Id. ¶ G(2-4).
102. Id. ¶ L(2)(b).
103. Id. ¶O(2).
104. See supra Part II.B. 1.
105. See supra Part II.A.1.
106. Also significant would be the monitors' budgets, which were quite divergent. Los Angeles paid $11 million for 5 years of monitoring, while New Jersey paid only $1.8 million over the same period. See infra note 167. New York, without a monitor, paid nothing and, it might be argued, received nothing in return. See infra Part II.D.2.
107. Daniels v. City of New York, No. 99 Civ. 1695, 2007 WL 2077150, at *1 (S.D.N.Y. July 16, 2007).
108. See Los Angeles Consent Decree, supra note 38, 11 39-54. LAPD failure to implement many of the TEAMS II components is one of the main reasons the consent decree was extended in 2006. See supra Part II.B.1.
109. Los Angeles Consent Decree, supra note 38,¶¶ 104-05.
110. Id. ¶ 156.
111. Stipulation of Settlement, supra note 67.
112. Id.
113. Id.
114. Daniels Stipulation of Settlement, supra note 90,¶ F(5).
115. See, e.g., New Jersey's Dispositions section breaks out Summons Moving; Summons Nonmoving; Warnings Moving; Warnings Nonmoving; Summons Moving & Warnings Moving; Summons Nonmoving & Warnings Nonmoving; and Summons &/or Warnings/Moving &/or Nonmoving; each of these is then broken down by racial group and racial group as percentage of that particular disposition. What would be much more significant statistically, it seems, would be the percentage of each disposition received by each racial group, i.e., "row percentages" as opposed to "column percentages." See Aggregate Data Reports available at http://www.nj.gov/lps/aggregate-reports.htm.
116. See, e.g., Analysis Group, Inc., Pedestrian and Motor Vehicle Post-Stop Data Analysis Report (July 2006), available at http://www.analysisgroup.rom/AnalysisGroup/uploadedFiles/Publishing/Articles/ LAPD-Data-Analysis-Report-07-5-06.pdf; Greg Rid-geway, Analysis of Racial Disparities in the New York Police Department's Stop, Question, and Frisk Practices (2007), available at http://www.rand.org/pubs/technical- reports/TR534/.
117. See Sean Gardiner, Frisk Management: How the NYPD's Blackly Grim Stop-and-Frisk Numbers Got Whitewashed, VILLAGE VOICE, Dec. 12-18, 2007, at 1 (criticizing the Ridgeway study).
118. David Rosenzweig, ACLU Seeks Role in Enforcing Police Reform Pact, L.A. TIMES, Dec. 19, 2000, at B3.
119. Daunt, supra note 36.
120. "The LAPD shall prepare and publish on its website semiannual public reports." Los Angeles consent decree, supra note 38,¶ 156.
121. Office of the Independent Monitor of the Los Angeles Police Department, 1st Quarterly Report, available at http://www.lapdonline.org/search- results/content-basic-view/9010.
122. LAPD Progress Mixed; Report: Strides Made in Some Mandated Reforms, but Backlog Remains, LONG BEACH PRESS-TELEGRAM (CA), Feb. 16, 2002, at A2.
123. Office of the Independent Monitor of the Los Angeles Police Department, 2nd Quarterly Report at 1, available at http://www.lapdonline.org/ search-results/content -basic-view/9010.
124. Office of the Independent Monitor of the Los Angeles Police Department, 3rd Quarterly Report at 29, available at http://www.lapdonline. org/search-results/content-basic-view/9010.
125. Mariel Garza, LAPD Reform Attitude Blasted, L.A. DAILY NEWS, May 16, 2002, at N8.
126. This data is collected from the appendices of the Independent Monitor's quarterly reports, available at http://www.lapdonline.org/search-results/ content-basic-view/9010.
127. Andrew Blankstein, Key Period Begins in Reform of LAPD, L.A. TIMES, June 14, 2004, at 1.
128. Id.
129. Patrick McGreevy, Plan to Change LAPD Consent Decree Rejected, L.A. TIMES, Mar. 22, 2006, at B-6.
130. Patrick McGreevy, U.S. Oversight of LAPD May Be Extended, L.A. TIMES, Mar. 28, 2006, at B-1.
131. Id. Teams II is the computer system designed to track the actions of individual officers and act thereby as an early-warning system for problem officers.
132. McGreevy, supra note 16.
133. Appendix A, LAPD Driver Stop Data 2002, 2007. As the Initial Reason for Stop, "Municipal Code Violations" rose from 2,417 in 2002 to 14,545 in 2007, while "Suspect Flight" dropped off the table, from 2,006 in 2002 to 123 in 2007, despite an overall increase in stops. Whatever the reason, these differences are vast enough to call into question the veracity of the entire data set. See Arrest, Discipline, Use of Force, Field Data Capture, and Audit Statistics Reports, available at http://www.lapdonline.org/ search-results/content-basic-view/9016.
134. Id.
135. Id.
136. Appendix B, LAPD Pedestrian Stop Date 2002, 2007. See Arrest, Discipline, Use of Force, Field Data Capture, and Audit Statistics Reports, available at http://www.lapdonline.org/search-results/content-basic-view/ 9016.
137. Id. For example, "Call for Service" was recorded as the initial reason for the stop 2,240 times in 2002 and 15,784 times in 2007, a rise of 605%.
138. Id.
139. Id. Nonetheless, the LAPD managed to discover 135 vehicles in their 2007 pedestrian searches. "Nothing" was never found.
140. Appendix A, LAPD Driver Stop Data 2002, 2007.
141. Id.
142. Appendix B, LAPD Pedestrian Stop Data 2002, 2007.
143. Public Management Resources & Lite, Greenberg, DePalma, & Rivas, Monitors First Report, Long-term Compliance Audit, Civil Number 99-5970(MLC), v-vi (2000), available at http://www.nj.gov/oag/ monitors-report-1.pdf.
144. Robert Hanley, Monitors Commend Police on Effort to End Profiling, N.Y. TIMES, Oct. 7, 2000, at B5.
145. Associated Press, Minority Stops Climb on Turnpike, THE PRESS OF ATLANTIC CITY, Jan. 11, 2001, at A1.
146. Id.
147. Jonathan Schuppe, Unit of State Police Asks End of Oversight; Monitors Cite Internal Affairs Improvements, NEWARK STAR- LEDGER, Apr. 6, 2004, at 20.
148. Jonathan Schuppe, Trooper Reforms Working, Feds Say; Major Progress Praised but Some Profess Doubt, NEWARK STAR-L EDGER, July 20, 2004, at 1.
149. Jonathan Schuppe, Judge Eases Monitoring of State Police by Court; Minority Leaders Will Fight Ruling on Consent Order, NEWARK STAR-LEDGER, Apr. 9, 2004, at 1.
150. Id.
151. Public Management Resources & Lite, Greenberg, DePalma & Rivas, Monitors' Tenth Report, Long-term Compliance Audit Civil Number 99-5970(MLC), v (2004), available at http://www.nj.gov/oag/monitors- report-10.pdf.
152. Schuppe, supra note 148.
153. Public Management Resources & Lite, Greenberg, DePalma, & Rivas, Monitors' Twelfth Report, Long-term Compliance Audit Civil Number 99-5970(MLC), iv (2005), available at http://www.nj.gov/oag/monitors- report-12.pdf (emphasis added).
154. Rick Hepp, AG Cautious on Call to End Monitoring of Trooper Stops, NEWARK STAR-LEDGER, May 12, 2006, at 30.
155. Id.
156. David W. Chen, Monitoring of Police Should End, Corzine Says, N.Y. TIMES, Dec. 8, 2007, at B2.
157. Such as, for example, the categories "Summons Moving & Warnings Moving; Summons Non Moving & Warnings Non Moving" and "Summons &/or Warnings/Moving &/or Non Moving." See Appendix C, New Jersey State Police Stops 2003, 2007.
158. Appendix C, New Jersey State Police Stops 2003, 2007. See State Police Consent Decree Aggregate Data Reports, available at http://www.nj.gov/lps/8-aggregate%20-data-rep.pdf and http://www.nj.gov/lps/16-aggregate-data-rep.pdf.
159. Id.
160. Id.
161. Id.
162. Id.
163. Id.
164. Appendix D, New Jersey State Police Arrests 2003, 2007. See State Police Consent Decree Aggregate Data Reports, available at http://www.nj.gov/lps/8-aggregate%20-data-rep.pdf and http://www.nj.gov/lps/16-aggregate-data-rep.pdf.
165. Appendix D. The Hispanic percentage is calculated by adding the W.Hisp and B.Hisp categories.
166. Id.
167. The conditions were as follows, First, plaintiffs must notify defendants, in writing, that they have failed to comply with the Agreement. If, after receiving written notification of noncom-pliance, defendants agree that they have not complied with a specific term of the Agreement, defendants shall specifically perform that term within a reasonable time period mutually agreed upon by the parties. If defendants dispute their noncompliance, plaintiffs may seek a court order directing specific performance if: (1) the parties cannot agree on a reasonable time period for defendants to perform; or (2) defendants fail to specifically perform the term within the agreed upon time frame. Upon the happening of any of the these [sic] events, plaintiffs: may apply to the Court for an order directing specific performance of that term or terms. Such application may not be made fewer than thirty days after the initial notification of non-compliance to the NYPD and Office of the Corporation Counsel. Daniels v. City of New York, No. 99 Civ. 1695, 2007 WL 2077150, at *2 (S.D.N.Y. July 16, 2007) (emphasis in original) (citations omitted).
168. Los Angeles signed an $11-million, five-year contract with Cherkask/s firm, Kroll Inc. See McGreevy, supra note 17. Ginger's contract with New Jersey was more modest, but still amounted to $1.8 million over five years. W. Zachary Malinowski, Officer Linked to Scandal Is Now Advising Others, PROVIDENCE J. BULL., Apr. 23, 2004, at A. By contrast, all monitoring in New York, the nation's largest city, was presumptively to be performed by the Center for Constitutional Rights, with a total annual budget as of 2004 of $2.5 million. Marcia Coyle, Rights Center Tackles Guantanamo Detentions, NAT'L L. J., Feb. 16, 2004, at 24.
169. For instance, the NYPD has recently fallen years behind in releasing SQF data as required under the terms of the stipulation. The information that has been released has been very incomplete and not entirely public. For an in-depth consideration of NYPD secretiveness, see Gardiner, supra note 117.
170. New York City Press Release number 183-04, available at: http://home2.nyc.gov:80/portal/site/nycgov/menuitem. c0935b9a57bb4ef3daf2flc701c789a0/index.jsp?pageID=mayor-press-release&catID= 1194&doc-name=http%3A%2F%2Fhome2. nyc. gov%2Fhtml%2Fom%2Fhtml%2F2004b%2Ppr183-04.html&cc=unused1978&rc= 1194&ndi=l. See also NYPD Operations Order 11, included in Daniels Stipulation of Settlement, supra note 90, as Exhibit A.
171. Daniels Stipulation of Settlement, supra note 90, ¶ G(4). Pamphlet available at http://home2.nyc.gov/html/nypd/downloads/pdf/ community-affairs/Rights-and- Responsibilities.pdf.
172. Daniels Stipulation of Settlement, supra note 90, ¶ F(5).
173. Daniels v. City of New York, No. 99 Civ. 1695, 2007 WL 2077150, at *2 (S.D.N.Y. July 16, 2007).
174. Id.,at*4.
175. Id.
176. Id., at *3.
177. Daniels Stipulation of Settlement, supra note 90,¶ O(2).
178. Press Release, Center for Constitutional Rights, CCR Charges NYPD With Racial Profiling in Federal Lawsuit (Jan. 31, 2008), available at http://ccrjustice.org/newsroom/press-releases/ccr-charges-nypd-racial-profiling- federal-lawsuit.
179. Press Release, Center for Constitutional Rights, Court Compels NYPD to Release 10 Years of Stop and Frisk Data to CCR for Racial Profiling Class Action (Sept. 11, 2008), available at http://ccrjustice.org/newsroom/ press-releases/courteompels-nypd-release-10-years-stop-and-frisk-data-ccr- racial-profiling. Judge Scheindlin's order is available at http://ccrjustice. org/files/JudgeScheindlin-Order-Re-UF-250-Data-9.10.2008.pdf.
180. See Gardiner, supra note 117.
181. See Appendix E, New York City Stops and Searches by Race, 1998-99, 2002, 2006.
182. Id.
183. Id.
184. Al Baker & Emily Vasquez, Police Report Far More Stops and Searches, N.Y. TIMES, Feb. 3, 2007, at Al (quoting Professor Fagan of Columbia Law School, who said "it is an astonishing fact that stop rates went up by 500 percent when crime rates were flat"). See infra Part IV.B.
185. See Press Release, Center for Constitutional Rights, supra note 179.
186. See Daniels v. City of New York, No. 99 Civ. 1695, 2007 WL 2077150, at *4 (S.D.N.Y. July 16, 2007).
187. See, e.g., New Jersey Office of the Attorney General, supra note 57, at 4 (admitting that racial profiling among state troopers "is real - not imagined").
188. A notable exception is State v. Soto, 324 N.J. Super. 66 (Law Div. 1996), the New Jersey case in which the court held statistical evidence sufficient to establish a prima facie case of discriminatory intent. See supra Part II.A.1.
189. See Robin Shepard Engel, Jennifer M. Calnon & Thomas J. Bernard, Theory and Racial Profiling: Shortcomings and Future Directions in Research, 19 JUST. Q. 249, 250 (2002) (critiquing existing racial profiling studies for methodological weaknesses and paucity of data), available at http://www.informaworld.com/smpp/content?content = 10.1080/07418820200095231.
190. BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, and PUNISHING in an ACTUARIAL AGE 195 (Uni. of Chicago Press 2007).
191. 324 N.J. Super. 66 (Law Div. 1996).
192. See supra Part II.B.1.
193. 198 F.R.D. 409, 409 (S.D.N.Y. 2001).
194. Police brutality in New York at the time was epitomized by the cases of Abner Louima, a Haitian immigrant brutally assaulted in a Brooklyn station house, and Amadou Diallo, an unarmed Guinean shot dead on his stoop in the Bronx. For more on Diallo, see supra Part II.C.l.
195. Debra Livingston, Police Reform and the Department of Justice, 2 BUFF. CRIM. L. REV. 815, 816 (1999).
196. See supra Part III.B.2 (New Jersey); Part III.B.3 (Los Angeles); and Part III.B.4 (New York).
197. See, e.g., Baker & Vasquez, supra note 184 (quoting Fagan); Gardiner, supra note 117 (condemning the RAND study and drawing some of its own conclusions from the limited available data).
198. See Livingston, supra note 195, at 818. Scholars have long lamented that the 'low visibility' of much police work is a factor that complicates - or even frustrates - the supervision of line officers. In the words of one observer, because officers are sent into far-flung neighborhoods to perform their work, it remains hard to know precisely what they are doing and how they are doing it. Id. (internal quotations omitted) (citations omitted).
199. This opinion is not universally shared. For instance, Los Angeles City Councilman Alex Padilla acknowledged LAPD concerns that the required collection of data (among other consent decree requirements) might impede officers' ability to do their jobs. He then noted in response that "[t]he good cops have nothing to fear." Orlov, supra note 19.
200. Melissa Whitney, The Statistical Evidence of Racial Profiling in Traffic Stops and Searches: Rethinking the use of Statistics to Prove Discriminatory Intent, 49 B.C. L. Rev. 263, n.84 (2008) (citing End Racial Profiling Act of 2001, H.R. 2074, 107th Cong. (2001); Traffic Stops Statistics Act of 1999, H.R. 1443, 106th Cong. (1999); Traffic Stops Statistics Act of 1997, H.R. 118,105th Cong. (1997)).
201. Julie Ha, Groups Seek Data on Race-Based Police Stops, L.A. TIMES, Apr. 16, 1999, at B3.
202. See U.S. Department of Justice, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned, Monograph NCJ 184768 at 28 (2000), available at http://www.ncjrs.gov/ pdffilesl/bja/184768.pdf (noting that in response to disproportionate stops and searches of black motorists, North Carolina passed a law requiring state law enforcement to collect data on all routine traffic stops).
203. Whitney, supra note 200, at 275, (citing Suzanne Leone, Massachusetts Addresses Racial Profiling Head On: The Advocacy of Chapter 228 of the Acts and Resolves of 2000, 28 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 335, 335-36 (2002)); Racial Profiling Data Collection Resource Center at Northeastern University, http://www.racialprofilinganalysis.neu.edu.
204. See generally Brandon Garrett, Remedying Racial Profiling, 33 COLUM. HUM. RTS. L. REV. 41 (2001).
205. San Jose and San Diego, California, both undertook such projects in the early 1990s. See Ha, supra note 201.
206. New York is the most extreme example, but many other police departments have been less than completely forthcoming.
207. For the argument that raw data may have deeper meaning than is readily apparent, see Chris Anderson, The End of Theory: The Data Deluge Makes the Scientific Method Obsolete, WIRED, June 23, 2008; for a comprehensive examination of the possibilities and limitations of statistical evidence in the discrimination context, see Whitney, supra note 200.
208. For a good example of such a public reaction to hitherto hidden policing data, see Gardiner, supra note 117.