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A conversation about profiling and traffic enforcement, with Edward A. Flynn

Globe Staff Photo / Tom Landers
  "I bet an awful lot of cops, if they looked at their own data, they would be personally shocked that they had produced these statistics -- they would own the disproportion for women and old people, they would say, oh, yeah, of course, this is OK. But I think an awful lot of our officers would be shocked to see that they didn't apply those standards uniformly across race."

"In my experience as a policeman, the people that gave me the least trouble in my life were the committed career criminals that you caught in a crime. The lip you got was from the otherwise respectable citizen who got stopped for a red light, stop sign, speeding ticket -- my God, it was like Billy Martin at first base sometimes."

The senior law enforcement official in Massachusetts, Secretary of Public Safety Edward A. Flynn, was interviewed this month by the Globe's Bill Dedman.

Flynn has more than 30 years of experience in law enforcement. He began as a patrol officer in Jersey City, was the chief in Braintree and Chelsea, and in Arlington, Va. Appointed to the cabinet-level position by Governor Romney in January, his responsibilities include the State Police, correction, and emergency management. Under state law, Flynn will be required to order police departments with apparent race and sex disparities in traffic enforcement to collect more information, after he receives a study being done by Northeastern University.

Globe: You've read a draft of the Globe's study of tickets and warnings. What is your overall reaction to these records?

Flynn: It certainly would appear that the Globe's analysis shows that the application of traffic law enforcement is disadvantageous to minorities.

I think we should draw a distinction in terms of analyzing in a highway patrol situation versus what happens in an urban environment situation in which traffic enforcement may be being used as part of a crime control strategy. And third, of course, what happens in suburban or rural environments in which it's not so much a crime control issue as it is pretty much a personal dynamics issue.

So there are different ways to try to, as you're indicating, make sense of the data from a prescriptive point of view, if you will. There may be some places in which these discrepancies are entirely appropriate, only given the use of traffic stops as part of a broader strategy dealing with a particular type of crime in a particular area. That may skew it in one way in certain areas, while in other areas the dynamics may be much more personal, and may be based on cultural competence issues, instead of an objective notion of what conduct deserves what sanction.

Globe: Is there any level of discrimination that seems to you appropriate? In other words, is it appropriate for police officers to give a break to people who live in the town? Is it appropriate for police officers, when they catch people doing identical traffic offenses, to give a break to older drivers. Those two seem to be ones where, when we talk with police chiefs, they're very free to acknowledge that they or their officers -- so either as policy or practice -- do that, and it's human nature to do it, and doesn't strike them as necessarily a bad thing. How does it strike you?

Flynn: If we take a step back, as law enforcement executives, we have to first acknowledge that you guys have done a service here. And that is that you have lent a degree of analysis to a fairly routine interaction that the vast majority of police departments are incapable of performing themselves. And so when you describe certain types of interactions between the police and certain discrete subsections of the driving population, there's an awful lot of folklore out there. There are an awful lot of assumptions out there about what happens. But very little capacity to rigorously examine what happens, and then to say, what are the policy implications of what we're seeing.

Now I say that, not to be disingenuous with you, but to draw attention to the fact that: I think police executives have a rare opportunity now to take this snapshot of traffic enforcement across the commonwealth and say, what does this mean in terms of the appropriate use of police discretion?

Globe: One thing we've noticed is that police chiefs may have policies but those are not always well discussed. The town council may not know that this is a department that's more lenient or less harsh, or easier on in-towners or out-of-towners.

Flynn: I think by and large you will find, and I found as a police chief, there is an extraordinary amount of ambivalence about how important traffic enforcement is in a given community, and where it fits in in terms of creating a safe driving environment versus being a revenue source versus being a source of constituent complaints.

I have found in community after community, for example, that the biggest source of complaints -- I found this true in Braintree, I found it true in Chelsea, I found it true in Arlington, Virginia -- that whatever the big issues were facing the community, the No. 1 constituent complaint was always cut-through traffic, complaints of people speeding through neighborhoods, and demands that police do something about it. And I got to a point where I would lecture community meetings, and I would say, I will produce the enforcement in this neighborhood that you feel is important, for the hours that you say this problem exists, but I warn you, the first five tickets we write will be to neighborhood residents, and then you will complain about the police being here harassing your residents. And sure enough it would always happen.

And so the ambivalence was extremely strong. And I found ambivalence from city councils, from boards of selectmen, from neighborhood groups. They wanted the enforcement, but they don't want to bear the brunt of it. They want police officers to use discretion, but they want it to benefit them. There's hardly a motorist out there on some level who doesn't want to be able to talk themselves out of a ticket. Believe me, I'm not being defensive here. I'm trying to be descriptive.

And so that's a lot of the backdrop against which, shall we say, the internal pressure is on officers to give, quote, a break, as opposed to give a ticket. And the one thing about a written warning is it enables officers to appear productive: they've taken an action, they've stopped a motorist, they've done a thing. But at the same token they have not been punitive.

The most complaints you get as a police chief executive is traffic enforcement situations, in which someone is convinced that it was a speed trap, or the officer was unfair to them, or something else. Traffic far more than crime creates complaints for individual officers, and so they run the gamut from being very warning oriented, to sometimes being a little heavy on the enforcement side to protect themselves from complaints. But it's a very interesting dynamic.

Globe: Local control -- I know people pride themselves on that, and clearly have 351 different policies at least. But there are towns where 90 percent of the citations are tickets, and towns where warnings are 90 percent. Of course, oral warnings may confound that kind of count. But do you have a personal philosophy, or do you think the state ought to have some guidance for police departments on whether certain offenses should be ticketed or warned? We notice that the people cited for littering are more likely to get a ticket than people who are cited for impeding an emergency vehicle, or failing to stop at a railroad crossing. It doesn't seem that that's the result one would design if one were in the Legislature laying out the best policy to get to public safety. That's what I'm trying to get to: Do you think that warnings have the same effect as tickets in changing driver behavior? Is this something that the state should express some voice or role in?

Flynn: You rightly point out that a lot of enforcement activity is driven by department culture that's frequently rooted in the expectations of that specific community. I have never in my experience found a directive mandating a certain level of activity, around which a committed police subculture could not work. Sorry if that's convoluted. If it cuts across strongly held cultural beliefs -- and this is not unique to policing, this is the subculture of work -- if you issue directives that cut across strongly held cultural beliefs about what's fair and appropriate, what's an appropriate use of discretion, what's an appropriate use of authority, what's an appropriate cutoff, and you decree this from on high, it is extremely difficult to assure compliance with that directive. And I'm not offering that as an excuse. Because those cultural expectations that you uncovered -- what's fair to do to a woman, what's fair to do to an old person, what's fair to do to somebody who's got a handicap, what's fair to do to somebody who you stop and they say, oh, I'm so sorry, I didn't mean to do that, oh my gosh, and they start crying, versus you stop somebody and they say, I didn't do that, what are you talking about, you're crazy, I wasn't going over the speed limit, you're wrong.

In my experience as a policeman, the people that gave me the least trouble in my life were the committed career criminals that you caught in a crime. The lip you got was from the otherwise respectable citizen who got stopped for a red light, stop sign, speeding ticket -- my God, it was like Billy Martin at first base sometimes. Now whether that should have an effect on the decision to cite, is an open question. Arguably it shouldn't. It should be just the violation. But it's fair to say that on some level it does influence the decision to issue a citation -- in low-level speed situations, different than the highway. You know, if a trooper is going to pull somebody over for going 95 mph and do an inherently dangerous stop on a six-lane road, they're going to write you, and they should. 'Cause that's where the deaths occur: in those high-speed incidents.

Globe: One thing that surprised us, and surprised us, is that officers were writing down warnings for going 72 in a 40. A chief said, you'd think they'd just write it down for 10 over. It does suggest that there's been very little supervision or training on this issue.

Flynn: I think it's fair to say that it's a supervision issue. The training issue -- listen, you can use discretion properly or improperly. A trainer might teach the person to say is, write the guy for 10 miles over and write a little plus sign, rather than being an idiot and issuing a warning for 30 miles over. I think -- depending on the time, the date, and the place -- I think some officers are reluctant to write the full speed, because the fines as you know are extraordinary now. Since, what was it in the early 90s, you remember when they like doubled all the fines --

Globe: So it may be that the Legislature's action may have the adverse effect of making officers reluctant to hand out what ends up being a $500 ticket.

Flynn: Oh, there's no doubt about that. I think actually the Globe did some work on that in the early 1990s, if I'm not mistaken, which showed that there'd been a decrease in citation history after the fines were significantly increased. A lot of anecdotal information was that officers were backing off writing the actual speeds, because the fines were in fact so extraordinary.

Globe: Now, specifically, I'd like to ask you, do you have a personal belief on whether a warning or a ticket has a different effect on the driver's future behavior?

Flynn: I think it very much depends on two variables: One is the location, and by the location I mean is it a place that we can demonstrate that there's a serious accident problem, and you're using the citation to reduce the accidents. I mean, there is such a device known as the traffic enforcement index -- it's left over from the 50s, but some people still use it -- in which there's a ratio between numbers of moving violations written for violations that cause accidents, and there's like a ratio between how high that index goes and what you can conceivably do to the accident history at a given location.

Globe: You mean, there's a point at which you can't change it anymore?

Flynn: Yeah, but there's also a point at which the use of discretion is actually discouraged, because you're doing what's called selective enforcement -- and that's not a bad thing, selective enforcement means we're selecting this particular offense to heavily enforce to reduce accidents at this place. So in that type of situation you're going to expect discretion to be limited to very unusual circumstances -- you know, going to the hospital with a baby, my husband had a heart attack, that sort of thing. You're going to expect people to write them.

Now, having said that, there is a difference between a directed-patrol, selective-enforcement situation, in which you're applying a specific tactic, writing citations, against a specific goal, reducing accidents. Then there is the other type of activity, which is more chance-driven. You come to my attention in the context of my normal patrol duties, and in that context I have cause to pull you over. Frequently in those situations, and I'm just thinking generally it's the culture, officers are not necessarily predisposed to write or warn you until they've actually gotten to the car.

Very often in that context, their decision as to whether or not to issue a warning or citation is in fact based on the quality of the human encounter. Now that's not taught anywhere, believe me. But that arises out of their experience and their predilections.

Therefore the challenge is to limit the number of times they do that, to have it connected to something rational. I remember as a young officer, my ticket book said you should decide whether or not to cite before you approach the car. Well, that was all well and good, until I approached the car, and I found the weeping mom and the kid who had the head wound and they were trying to get to the hospital. I'm not going to write you a ticket.

Globe: By the way, I have to say, after all our conversations with police chiefs, there are more people driving to hospitals with pregnant women in the car than I had ever imagined.

Flynn: Yeah, and the other one is people having to go to the bathroom, too.

But the other way I do remember vividly, which is going up, not being sure what I was going to do, but the person had committed a violation. This was not a directed-patrol activity, so it was like pull it over or not pull it over, but hey it happened right in front of me. And you're would find yourself confronted with two types of drivers. One is the type of driver who says, Jeez, I was just not paying attention, I'm sorry about that, I don't know what was wrong with me. And if it wasn't an egregious violation, if he hadn't almost hit somebody, if he hadn't almost crashed into somebody, you were frequently predisposed to say, OK, you understand what just happened, you shouldn't do that, be careful next time. Don't do that again. Be careful.

And then you come up to somebody else, same set of circumstances, and the person would vehemently deny that anything in fact had happened, and that you were wrong to have stopped them in the first place. And in that context frequently you would feel the pull: Wait a minute: The only person who's going to be able to decide that they were right or wrong is the judge. Clearly you're not taking my word for this. I'll tell you what: You tell your story to the judge, and I'll tell my story, and we'll decide if this behavior was in fact a violation of the law. Have a nice day, and here's a piece of cardboard to take with you. They were cardboard citations. So that type of thing is a dynamic that is not an infrequent dynamic.

Now the obvious next question is, is that right or is that wrong. And it goes back to kind of what I said earlier in terms of culture. There are different subsets of American drivers. There are drivers who drive in California, and in California, they assume that if they're stopped they're getting a ticket. California is famous for being very very hard on traffic enforcement. They write tickets. So friends of mine who were East Coast cops and went to the West Coast, could not believe the difference in the experience. Now, I'm not saying they didn't run into angry motorists -- they did. But the fact is that the majority of people they stopped and cited were just, OK, you got me, I'm getting a ticket.

On the East Coast, there's a strong culture that we've got a story. And if we tell our story, only a really mean cop -- or a trooper -- will give us a ticket anyway. And so there's a lot of that cultural thing going on, and let's face it we draw our police officers from that culture.

Globe: Of course, that doesn't explain all of our disparities...

Flynn: I wouldn't pretend that it does.

Globe: Because State Police officers in Boston are apparently approaching those bad attitude drivers with more equanimity than Boston Police officers are. But I want to ask you about state policy. One thing that chiefs has mentioned to us is that in some towns they record warnings from their town, so if they stop you again in that town they'll know it. You got a warning last week, you obviously didn't pay attention, you get a ticket this time. But they have no way of knowing, of course, that you got a warning in 350 other towns in the state. Some warnings were typed in for the purpose of testing for profiling. Do you have an opinion whether warnings ought to be typed in for safety reasons? Clearly we're losing some of the value of warnings because they're not available to the next officer who pulls you over.

Flynn: I think that's fair to say. I think there's a myth out there, in which people seem to think that all of these warnings are kept in some sort of place, and if I push a button in my cruiser, I get your warnings, and therefore three warnings equals a penalty.

Globe: It used to on paper, but it wasn't enforced.

Flynn: Exactly. And so that's not happening now. Because ultimately all those things become personnel issues, they become data entry issues. There's a school of thought that could make a rational case, why have warnings at all, given the fact that we don't really do anything with them? It does raise that question. I think there's no question that more data is always better than less data. But, you know, we are -- I don't think this sounds lame now, it's perfectly plausible -- we've got technological and budgetary limitations right now that make it unlikely we're going to be able to produce that product. But certainly if we had it all along, it would be a useful piece of information to have. It's one thing to be able to produce a driving history, but as you know a driving history only captures the things that you actually were found guilty of, as opposed to all those times that somebody gave you a break. And if we knew that, we'd be better off.

Globe: And also if one type of driver is more likely to get a break, then a driving history that just includes citations may not be a very accurate representation of which driver has a worse history than another.

Flynn: Certainly. That's also true.

Globe: Is it true, first of all, that the governor's budget that he signed includes $150,000 for typing in warnings, and if that's true what do you plan to do -- how far can that take you? Are you going to start typing them in at some point for the purpose of this profiling question and get some of those to Northeastern for study?

Flynn: Our hope is actually to use our interaction with Northeastern University and Jack McDevitt to help give us a better sense of what to spend that money on, quite sincerely. What's the maximum use to make of minimum money? You know we started out with a number that was more like $800,000. Certainly $150,000 is better than nothing, but before we start spending it ourselves and deciding as good, attentive bureaucrats ourselves what should go into that computer with whom, we really want to use this study experience with the Northeastern University personnel to give us some guidance on what's the most sensible use to make of that money, in terms of what data we should be trying to get.

Globe: What do you make of the fact that the State Police -- they're not robots, they do write warnings to about a quarter of speeders -- there is no town department in the state that is as fair as the State Police, that has as small a disparity, in terms of both race and sex...

Flynn: Well, the first thing I did when I got here, Bill, is that I just had a talk with those troopers, and I said, I want to make sure that every ticket...

Globe: I like that. You have a tape recording of that...

Flynn: No, darn it...

Globe: But actually this happened in 2001, all this fairness. It might have gone downhill since. No, what do you make of it?

Flynn: I'm sure what we would reasonably call fairness on the part of the State Police would probably be interpreted by some people as strictness. Boy, those troopers -- and this is a national thing -- troopers are generally regarded as the strictest officers when it comes to traffic enforcement. So that is part of their subculture as well, to be rigorous in traffic enforcement.

It's also important to keep in mind that the State Police are generally taking enforcement activity against vehicles traveling at a much higher rate of speed. In those situations the potential for loss of life is certainly greater. People generally know the speed limit on a highway. There are fewer legitimate excuses for speeding in that situation. And the numbers also obviously suggest that most troopers feel that speeding is very dangerous, and that tickets are more effective than warnings. And I think, if you're an officer on a highway, and you're going to take the risk -- I mean, more troopers nationwide are getting killed getting hit by cars than are shot by felons -- if you're going to take that risk to pull someone over, you're going to take enforcement action, and that certainly is something that they do.

Globe: Should we be surprised that the State Police let you go only 10 mph over on state highways, before you're likely to get a ticket? But in Boston, in a 30 mph zone, for example, it's more like 15 or 20 over. The speed isn't as great, but your exceeding the limit by more of the limit. Does that seem like a rational way to go about it?

Flynn: I think it's rational for the following reasons. The State Police do an enormous amount of speeding enforcement. They get a lot of people in that net. I think it's also fair to say that given the fact that speeds on a highway are generally higher to start with, the tolerances are less than they would be on a neighborhood road. There's certainly also the possibility that a lot of the tickets that are written for 10 miles over may in fact be for violations that are for more violations higher than 10 miles over. Because troopers write so many speeding tickets that they would literally be exerting a tax, if you will, on the motoring public because the speeding violations are so high in dollar value.

I don't have a number in front of me, but if the speed limit is 55 and they're stopping people at 75 and 80, for example. I mean, you've been on the highway, 75 and 80 is a manageable speed in a modern automobile. It's too fast, but it's manageable. If the troopers are pulling you over, but they're not writing you at 75, they're writing you at 65. Because they've decided you're going to get the lesson and the fine, but they don't necessarily need to fine you $700 or $600. I don't know that a fact, but as somebody who's been a police officer, I think that's a rational decision to me, given how many tickets they write.

Globe: So the State Police are a very different organization. We also notice the relative fairness of the Boston police who write a lot of tickets, that is when traffic enforcement is more of what they do. Maybe it's a false analogy, but it struck me as perhaps connected to the same reasons that heart surgeons who do more heart transplants are better at it: You get practice, you get a routine.

Flynn: I think you're absolutely right. For state troopers, and for traffic officers in cities and towns who do a lot of traffic, that's part of their core mission.

Globe: So the question is, is there any lesson in the relative fairness of those two groups that is at all relevant in Waltham or any other place in saying, we have disparities -- clearly, if you were more rigorous, and if you always wrote a ticket for 11 over, and always wrote a warning at 9 over, these race and gender disparities would be eliminated, because they occur when we compare people doing the identical speed. Does the fairness and rigorousness of those groups offer any lesson at all for town police?

Flynn: I think the lesson that exists is, broadly speaking, is: If you exercise relatively little discretion, you are likely to always be, quote, fair. Because everybody will be treated exactly the same for the same offense. That's inherently a pretty good thing. So from the standpoint of town traffic enforcement -- again given the different cultural expectations of boards of selectmen, of the people who live in a town, of the departmental culture that may not be enforcement oriented -- the important question is less that all blacks and all whites get tickets at the same rate, but rather that the discretionary differences, for whatever they're worth, if we're assuming they're based on some level of innate fairness in a different sense, rather than equality of outcome but reasonableness of outcome. If we're going to interpret fairness as that: I want to see that black and white women have the same break rate, that white and black men of the same high speeding ages get pretty much the same level of tickets, and that old folks, black or white, get relatively the same rate. You see what I'm trying to get at?

Globe: Yeah, because we're getting these differences, but they accrue more to one group than another.

Flynn: Exactly. And so at some levels, trying to play fair with differences in community and policing cultures, and the expectations of the motoring public -- the motoring public I don't think expects to be treated by their hometown cop like they expect to be treated by a trooper on the Pike. They expect it to feel different. They expect themselves to, with a plausible story, perhaps to not get the ticket. I went to high school with this guy. He coaches my kids in Little League. Allowing for that, fairness then means that every subgroup gets treated the same across races.

In that context, then you get the sense that the only demographics that matter are sex and age. If you get the sense that the younger driver needs to get this enforcement -- the older driver, it looks like you're picking on an old person if you give them a ticket. The elderly woman, the cultural expectation in the community is that elderly women should generally get a break, unless they almost killed somebody. If that is so, I want to see that the elderly black and white women are pretty much statistically a dead heat. That's important.

Yes, we could fix it. As chief administrator tomorrow, I could say as a police chief in my town, no more warnings, everybody gets a ticket. Now on one level, the fairness issue goes away, and I'm covered. But I don't necessarily thing that people are going to get fair policing in terms of all those individual encounters that could have gone either way.

Globe: And you wouldn't last very long.

Flynn: And I wouldn't last very long. Either a lot of cops would just stop writing altogether -- one way to comply with policy is just, I won't do anything. Or, malicious compliance, where the community starts screaming because they're getting hammered with all kinds of petty violations that they used to get warnings for. I bet an awful lot of cops, if they looked at their own data, they would be personally shocked that they had produced these statistics -- they would own the disproportion for women and old people, they would say, oh, yeah, of course, this is OK. But I think an awful lot of our officers would be shocked to see that they didn't apply those standards uniformly across race. I think that's the valuable learning moment for those officers, is to re-examine the components of that traffic stop: Why is it, it doesn't break evenly for all the old people you stop? What's different? Why are you behaving differently? What's different about the situation?

And, without being a Pollyanna, I think that those percentage differences are not so huge that they cannot be overcome, with a greater sensibility of officers examining their use of discretion -- and managers asking about it. And to the extent that managers can start tracking -- realizing now that warnings aren't just something to stick in a basket for the mandatory seven years of public records, but in fact can be management tools, good and proper management tools, to make sure that our community is perceiving us as fair to everyone. Fair in the sense of doing the right thing in the context of the situation, rather than writing everybody a ticket. I think those warnings can become valuable management tools, and they haven't been heretofore, they've been seen as stuff you gotta store. And I think this article maybe gives us a chance to look at them. Most departments are small enough, you can look at everybody's warning activity versus their citation activity, and find out why there's differences. Explain the difference. Why is this one different than that one? It's either different for an objective reason, or somebody is -- consciously or unconsciously, and I would offer usually unconsciously -- applying a different standard to those groups, and to be confronted with it is to take a big step towards changing it.

Globe: If it were conscious, these disparities would be greater.

Flynn: Yeah, I think you can make a case for that. My honest feeling is -- the worst bias I saw as a cop coming up in Jersey City, the officers that I perceived as people who really had bad racial attitudes, they expressed it by not enforcing the law at all. Their attitude was, you know, I'll go to the emergency calls, but, pffft, I don't care. I'm going to sit in my car and wait for the next call. It wasn't the ones who were necessarily out there being active. Apathy can hide racist tendencies fully as much, if not more than, aggression. Given the size of these disparities, for the vast majority of cops in this commonwealth, I think it's a learning moment. ... I have no doubt that this is going to cause a lot of discussion, but I hope it's used as a springboard for positive change, rather than acrimony.

What this article can do is to serve as a warning shot to everybody, who can look up their own town -- particularly if I'm the police chief, I'm going to say, woah, what does this mean? And I think that conversation can start in advance of December's hopeful publication of the Northeastern data. You don't have to wait six months to start taking action. You can read a newspaper and say, you know, it may only be a 5 percent gap, but it's 5 percent too much. What's up with that? There's no reason you can't start having that conversation now.

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