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Racial profiling and Freddie Gray

Would Frosh's racial profiling guidelines have saved Freddie Gray?

Attorney General Brian E. Frosh is poised to take a commendable step today in the effort to restore trust between the police and minority communities by issuing a set of guidelines designed to stop officers from using race, ethnicity or other characteristics as a factor in routine law enforcement. But as an investigation of Baltimore police practices by The Sun's Catherine Rentz makes clear, it will be no easy thing to translate the principles Mr. Frosh is articulating into discernible change in neighborhoods like Freddie Gray's Sandtown-Winchester.

Last year, a few months after the killing of Michael Brown in Ferguson, Mo., brought the issue to the forefront of national consciousness, the U.S. Justice Department issued new guidelines for how and when federal law enforcement agents could use race, ethnicity, national origin, gender, gender identity, sexual orientation, disability or religion as a basis for action. Mr. Frosh is seeking to extend those guidelines to state and local law enforcement in Maryland.

Twenty years ago, the Supreme Court ruled that race-based traffic stops were unconstitutional. What Mr. Frosh is not only seeking to extend that standard to all routine police work but to say that in most circumstances, race and other such characteristics should not be a factor at all.

As Mr. Frosh makes clear, standards are different if police are investigating a particular crime and have relevant information, such as an eyewitness account providing a physical description of a suspect. Even then, officers need to consider the credibility of the source. But the main thrust of the guidelines focuses on cases when police are operating without any information other than their observations.

That has great resonance in light of the Justice Department's report about discriminatory policing practices in Ferguson, where a predominantly white police department seemed to view citations of African-Americans for minor offenses as a convenient means of funding the city's budget.

But what about Freddie Gray? Police were targeting his neighborhood for heightened enforcement, evidently as a result, at least in part, of a request from State's Attorney Marilyn Mosby. Police commanders in the Western District translated that into a demand for "deliverables" — that is, stops, arrests and other measurable evidence of active policing.

On the morning of April 12, officers approached the street corner where Gray was hanging out with a friend. He reportedly made eye contact with one of the officers and ran. Police gave chase and, according to the indictment of officers involved, physically restrained him and searched him, eventually discovering a knife that they claimed was illegal for him to carry. They placed him in the back of a police van — eventually shackling him hand and foot and, according to official accounts, placing him face down on the floor with no seat belt or other restraint. The officers are also accused of ignoring his repeated requests for medical attention. By the time he was taken from the van, he had suffered a severe spinal cord injury from which he would die a week later.

Did any of that happen because Freddie Gray was black? Ms. Mosby, who asked for the stepped-up enforcement, is black. About half of the police department is black, the chief at the time was black, and so is the mayor he worked for. Three of the six officers indicted in Freddie Gray's death are black. As much as the Black Lives Matter movement has focused on mistreatment of African-Americans by white police officers, the story in Baltimore is more complex.

In a story in Sunday's Sun, Ms. Rentz presented an analysis of data showing that while the number of arrests for so-called nuisance crimes has dropped in recent years, blacks are still disproportionately targeted. Baltimore is about 64 percent African-American, but blacks accounted for 93 percent of those arrested for loitering and 84 percent of those arrested for trespassing in 2014, Ms. Rentz reported. Before possession of small amounts of marijuana was legalized, nearly 92 percent of those arrested for that crime in Baltimore were black, according to an ACLU analysis.

As it did in Ferguson, the Justice Department is investigating Baltimore's police department to determine whether those disparities are racially motivated. But the answer is likely not that simple. Police saturate high-crime neighborhoods, as they were doing in Sandtown on the morning Freddie Gray was arrested. In Baltimore, as a legacy of generations of official and then de facto segregation, those neighborhoods are almost entirely black and disproportionately poor. Aggressive law enforcement gives criminal records to large numbers of people for offenses that would go unnoticed elsewhere, diminishing their prospects and increasing the chances that they will engage in ways large and small in the illegal economy. That means more crime, more law enforcement and the perpetuation of a vicious cycle. It's not necessarily that the officers chased Freddie Gray because he was black, it's that he almost certainly wouldn't have been on that corner if he hadn't been.

Mr. Frosh is right. There is no place for racial profiling in Maryland law enforcement. His office needs to do all the training, monitoring and analysis it can to make sure it doesn't occur. But the rest of us need to remember that eliminating conscious bias is only the first step.

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