Seven years ago, a federal investigation into the Baltimore Police Department emphasized how officers frequently and unconstitutionally stopped people without reasonable suspicion of a crime in order to frisk them for weapons or drugs.

It was the legacy of the department’s “zero tolerance” strategy, which attempted to suppress crime by regularly stopping and searching pedestrians, then arresting them on whatever charge might be available at the time — including minor offenses like loitering or open containers of alcohol.

Between January 2010 and May 2014, Baltimore officers made more than 300,000 pedestrian stops — a figure U.S. Department of Justice officials described in their investigative report as likely an undercount. Officers were recording far fewer stops than they were actually making, investigators suspected, and about half of them focused on a small segment of the city’s population in two of the least populated, but majority-Black police districts: the Western and the Central.

The startling figures prompted an array of policy changes spelled out in the resulting consent decree enacted a year later.

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Today, city leaders proclaim the police department has been wholly reformed. Former Police Commissioner Michael Harrison often repeated the line that officers are recovering more guns off the streets with fewer uses of force and fewer citizen complaints.

But the extent to which police have truly halted the mass search practices has proven elusive to quantify.

As part of its consent decree, the Police Department is required to release comprehensive stop-and-search data on an annual basis. But more than six years into the decree, those data are still not being uniformly collected or even reported.

Samuel Walker, an emeritus professor of criminal justice at the University of Nebraska who studies police consent decrees, said he couldn’t imagine what is taking so long. Officials have pointed to technological challenges (the department used outdated systems to record police activity, and only recently, in the last year, set up a modern electronic records system), as well as the need to develop a methodology to report and analyze the data.

Walker found those arguments less than convincing. The problem, he said, comes down to “a lack of leadership” across the board: on the part of U.S. Judge James K. Bredar, who oversees the consent decree; the monitoring team that measures compliance; and the Police Department.

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“It looks like that there’s no people at the top really in charge and saying, ‘This is what we have to do,’” Walker said.

In other cities around the country, most major metropolitan police departments who entered into federal consent decrees were able to release data on such interactions within two to four years. Often, the data in cities such as Seattle or New Orleans revealed that Black residents are more likely to be stopped and searched, but less likely to have illegal contraband on them than their white counterparts.

But in Baltimore, the Police Department only recently started collecting the data and continues to tweak the process. Meanwhile, the judge and monitoring team overseeing the department’s compliance with its consent decree have allowed for delays to drag on for years without striking a critical tone.

Ken Thompson, who leads the independent monitoring team, described the delays as “unfortunate” but “not totally unexpected.” In an email, Thompson said the Police Department had to complete the “monumental task” of implementing an electronic records management system, moving away from its days of using paper records to document police activity.

Once that was done, Thompson said, the monitoring team pivoted to working with the department on “ironing out imperfections” in the reporting form and training officers on how to use it. Thompson contended that “BPD’s overall timeline is consistent with the experience of other jurisdictions undertaking similar efforts.”

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“That said, the monitoring team is hopeful we will be able to work through these hurdles to the point where we can conduct our stop-and-search assessment in the near future,” Thompson said.

A review of similarly situated police departments by The Banner found that while Cleveland has experienced similar delays in waiting for the data, other cities have seen it produced in short order.

Seattle’s police department, which entered a consent decree in the fall of 2012, had refined and piloted its stop data collection program by 2014, and was collecting it departmentwide by the summer of 2015 and publishing it the following year. In New Orleans, which entered its consent decree in January 2013 and had similar technological challenges to Baltimore, the Police Department gleaned data from more than 60,000 “field interview cards” and released an analysis of its findings by August 2016.

Jeffrey Fagan, a professor at Columbia Law School who has been outspoken against stop-and-frisk policing and analyzed New York City Police Department data on the practice, said that Baltimore has gotten a “very late” start on the process, which he described as unusually delayed. He questioned why the monitor hasn’t been more forceful or critical in its assessments of the Police Department.

“The monitor, in theory, holds the cards here, with the backdrop of the federal district court,” Fagan said. “So why the monitor hasn’t moved ahead is hard to understand.”

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The stagnation of progress on fulfilling such a central role of the consent decree comes amid close professional and personal relationships between the monitoring team, Judge Bredar and city officials. The Banner reported in May that Thompson is the great uncle of Ebony Thompson, the head of the city’s law department, a relationship that legal experts questioned as posing a potential conflict of interest.

Those close courtroom relationships, combined with slow-moving policy reforms, such as the stop-and-search data, have fueled a sense among criminal justice reformers that those overseeing the consent decree process have lost sight of its purpose.

A spokesperson for the Baltimore Police Department pointed to a clause in the consent decree that said the data requirements of the agreement were “dependent upon BPD acquiring or developing the appropriate technology for such data collection and review.”

“Unlike other consent decrees, ours has a technology section and it was largely due to the lack of a modern records management system (RMS),” spokesperson Lindsey Eldridge said in an email. “BPD’s former RMS was almost 20-years-old and lacked the ability to support our officers and the technology requirements within the decree.”

New policy initiative seen as at odds with decree

Even as the consent decree stalls in several areas, politicians in Baltimore have enacted sweeping policy changes to how police interact with citizens.

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Brandon Garrett, a professor who researches police consent decrees at Duke University School of Law, said that could be a problem.

“Having that kind of basic [police stop and search] data would be crucial in assessing whether new policy changes are impacting or potentially violating a consent decree,” he said.

Garrett said the delays in getting accurate data on policing in Baltimore speaks to the fact that there are likely improvements to be made in the way the DOJ requires data, as well as creating more transparency through the way consent decrees are designed.

Meanwhile, an initiative to increase enforcement of low-level crimes through verbal warnings, citations and even arrests has caught the attention of public defenders and criminal justice reformers.

State’s Attorney Ivan Bates and the Baltimore Police Department defended the initiative, saying it was approved by the DOJ and the monitoring team. The policy, they contend, simply gives officers a discretionary tool and in no way violates the consent decree.

But the Office of the Public Defender has expressed concern that it does just that, and has refused to participate in the citation docket set up by Bates for that reason.

The consent decree states that the Police Department “will encourage patrol officers to be familiar with the geographic areas they serve, including their issues, problems, and community leaders; engage in problem identification and solving activities with the community members around the community’s priorities; and work proactively to address quality-of-life issues in a manner that minimizes stops, citations, searches, arrests, and use of force consistent with the requirements of this agreement.”

Asked how that comports with the policy, a spokesperson for the department said that “anecdotally, we know that warnings have outweighed the number of citations given by police since the beginning of the citation enforcement.”

Alycia Capozello, deputy district public defender, said that the “nature and frequency of unconstitutional stops were at the heart of why BPD ended up in a consent decree, and data collection and dissemination were mandated because of their vital role in identifying and addressing abuse and misconduct.”

“The delay in providing stop and search data is consistent with BPD’s inability to comply with Office of the Public Defender subpoenas and public information requests,” Capozello said in an email. “These gaps in transparency and accountability efforts are particularly concerning in light of the recent move to enforce and prosecute low level offenses, where the potential for harassment is especially high.”

bconarck@thebaltimorebanner.com

Ben Conarck is a criminal justice reporter focusing on law enforcement for The Baltimore Banner. Previously, he covered healthcare and investigations for the Miami Herald and criminal justice for the Florida Times-Union. 

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