May 13, 2019

Introduction

Racial disparities pervade criminal justice systems across the country; Washington, D.C. is no exception. The District of Columbia’s Metropolitan Police Department (MPD) recently provided extensive arrest data for the years 2013 to 2017 in response to a Freedom of Information Act request filed by Open the Government and ACLU-DC. An examination of that data by the ACLU Analytics Team revealed a pattern of disproportionate arrests of Black people that persists across geographic areas and offense types. It also showed that MPD arrests thousands of people every year for relatively minor offenses. This report analyzes these trends and proposes steps for addressing them.

Clear Disparities — No Matter How You Cut the Data

From 2013 to 2017, Black individuals composed 47% of D.C.’s population but 86% of its arrestees. During this time, Black people were arrested at 10 times the rate of white people.

This disparity cannot be explained merely by a large concentration of MPD officers in predominantly Black neighborhoods. Rather, as the graph below shows, Black people are disproportionately arrested in over 90% of the District’s census tracts, including the whitest parts of the city.

Traffic Arrest Patterns Raise Particularly Serious Questions about Racial Bias

Seventy-eight percent of all people arrested for driving without a permit were Black. That statistic is notable because in many cases, officers have no way of knowing whether a driver possesses a valid permit at the time they order the driver to pull over.

As a result, the significant disparity in arrests for this offense may indicate a racial disparity in traffic stops—which, in turn, could arise from discriminatory decisions by officers.

Unfortunately, we can’t assess whether such a relationship exists because MPD has refused to track crucial information or make the information it does collect meaningfully accessible.

This failure is unlawful. Under the 2016 Neighborhood Engagement Achieves Results (NEAR) Act, the D.C. Council required MPD to track the race of the individuals its officers stop, the reasons for the stops, and other similar information. MPD waited more than two years before taking any steps to comply with that statute. In response to an ACLU-DC lawsuit, MPD finally began attempting to put the NEAR Act into effect; however, its implementation plan fails to track some of the required information and tracks other data in a manner that would effectively make it impossible for District residents to obtain and analyze the relevant records.

Thus, almost three years after the NEAR Act was enacted, MPD continues to thwart inquiries into why it arrests so many Black people for offenses like driving without a permit. The disparities highlighted in this report demonstrate the need for MPD to follow the law.

Large Numbers of Arrests for Nonviolent and Minor Offenses

Arrests for nonviolent offenses constituted a significant share of the overall arrest total for 2013–17. Indeed, of the five offense categories that generated the most arrests, four—release violations, traffic violations, narcotics, and theft—primarily cover nonviolent forms of misconduct. The chart below, which shows the average yearly arrests for the most common offense categories, illustrates this point.

Some nonviolent offenses are serious; however, thousands of MPD’s arrests were for relatively minor ones. The table below describes arrest patterns for a few of those offenses.

Notably, the data reports the most serious offense for which an individual was arrested, meaning that, for example, the 412 people arrested for noise complaints likely did not engage in threatening, or disorderly conduct that would have resulted in a more serious charge.

These offenses are only a sample of the relatively minor nonviolent offenses that resulted in arrests over the five-year period. The fact that, during the relevant period, MPD arrested over 16,000 people for this subset of relatively low-level offenses raises two concerns.

First, arresting people for minor offenses is often unnecessary, as officers could easily respond to such violations with a citation instead. It is disturbing that MPD has needlessly subjected so many people to the hardship of arrests for relatively minor conduct. It is also disturbing that MPD has devoted considerable resources to making such arrests, particularly given that D.C. Mayor Muriel Bowser recently asked the D.C. Council for an additional $3 million to MPD’s budget to hire more police officers, even though the Department already has one of the largest police forces per capita in the nation, and already receives over $500 million in annual funding.

Second, tolerating arrests for low-level offenses likely increases racial disparities in overall arrest rates. That’s particularly true of the crimes highlighted above—many of which indirectly constitute poverty crimes. Consider open container laws. Because people in poverty are less likely to own property than wealthier individuals, they have fewer private places to congregate with friends. That makes members of low-income communities more likely to gather in public—and commit open container violations if they drink alcohol while doing so.

Given the high correlation between race and poverty in the District, arresting people for crimes that are disproportionately committed by people who are poor will result in more arrests of Black residents—a trend documented in the table above.

One Step Forward, Two Steps Back

Passed in 2014, Initiative 71 made it legal for people to possess, use, grow, and share small quantities of marijuana. The law does not authorize individuals to consume marijuana in public or sell the drug to other people. As a result, public consumption and distribution remains illegal.

The marijuana statute became effective in February 2015 and, that year, the overall number of arrests for marijuana-related offenses plummeted, from 1,747 arrests in 2014 to just 216 arrests in 2015. The drop was largely driven by the reduction in arrests for marijuana possession.

However, while arrests for marijuana possession remained low, the number of arrests for public consumption of marijuana has been steadily increasing, particularly for Black people. After marijuana legalization, consumption arrests briefly declined before starting to rise, increasing from 79 arrests in 2015 to 217 in 2017. Arrests for that offense are racially skewed: even though white and Black D.C. residents use marijuana at similar rates[3], Black individuals comprised 80% of the individuals arrested for marijuana consumption from 2015–2017.

This disparity could stem from officers’ racial bias. Alternatively, the disparity could be the result of another statute that makes it illegal to do in public what is legal to do in private—thereby penalizing those who have less access to private property. These explanations could also work in tandem. No matter the cause, the consequence of the current marijuana regime is that Black people are ensnared in the criminal justice system at disproportionate rates for what the D.C. government agrees is a minor offense.

How Can We Move Forward from Here?

D.C. has one of the highest rates of officers per capita in the country; its annual budget is $500 million. Mayor Bowser has proposed increasing that budget by an additional $3 million so the Department can hire more officers. That’s not the right approach: the racial disparities documented here should prompt further analysis—if not outright reform—rather than an increase in the number of officers.

Rather than give MPD money to hire more officers, the mayor should:

  • Encourage the Council to repeal criminal statutes when they disproportionately target people in poverty. The Mayor and Council should consider introducing legislation that would repeal statutes that often penalize people for being poor. At a minimum, Mayor Bowser should order MPD to respond to these types of low-level offenses with citations rather than arrests.
  • Demand that MPD fully implement the NEAR Act. District residents deserve to know whether racial bias explains the disparities that pervade the city’s criminal justice system. The Council ordered MPD to make such an inquiry possible. It’s long past time that MPD fully complied with the law.
  • Collaborate with the Council to expand the power of the D.C. Office of Police Complaints (OPC). District law grants OPC the power to review incidents of police misconduct but significantly limits the circumstances in which OPC can exercise that authority. For example, OPC investigators can only issue reports based on the specific conduct raised in the complaint that the Office receives. That means if a complaint asserts that an officer was rude, but neglects to mention that the officer also used excessive force, OPC investigators could not open an investigation into the excessive force, even if they have incontrovertible evidence that it occurred. Restrictions of this sort hinder true accountability. The mayor should introduce legislation that would eliminate them.
  • Open an independent investigation into MPD’s Narcotics Special Investigations Division (NSID). During a recent officer disciplinary hearing, J.J. Brennan, a retired MPD sergeant who had worked in NSID and was still serving as a civilian supervisor, revealed that, when he was a sergeant, he routinely instructed officers to conduct invasive searches of suspects’ groin areas. Consistent with this testimony, several community members have complained to ACLU-DC about NSID officers committing searches of the sort Brennan described. In the face of credible allegations of grave misconduct, Mayor Bowser should demand answers by establishing an independent body outside MPD to investigate how NSID conducts searches.

District residents deserve a police force that serves them without bias. This report raises important questions about whether MPD is achieving this ideal. Mayor Bowser should demand that MPD release the data necessary to analyze the trends highlighted here and work with the Council to implement the reforms necessary to reverse them.

 


1. As defined here, this offense excludes people arrested for public drunkenness or possessing an open container of alcohol in a vehicle.
2. Data from 2015 to 2017, after legalization of personal possession of small amounts of marijuana.
3. See, e.g., National Survey on Drug Use and Health: 2-Year RDAS (2016 to 2017), Substance Abuse & Mental Health Data Archive, (click “Run Crosstab” to view results) (last accessed May 10, 2019).

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