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Craig Mastantuono Oct. 21, 2009

Bill Puts Racial Profiling Data at RiskMarch 4, 2011By Jack Zemlicka, Wisconsin Law Journal

The ongoing collection of age, race and gender data by police during routine traffic stops to assess the existence of racial profiling could be an evidentiary resource for attorneys.

But a legislative push to repeal the mandate jeopardizes the chances the data will provide any value to the criminal justice system.

On Feb. 23, the state Senate passed Bill 15, which would undo the current law passed as part of the 2009-11 budget that took effect Jan. 1.

The State Bar of Wisconsin opposes the repeal and some defense attorneys argued ongoing collection of data during stops could provide ammunition to suppress evidence in cases where racial profiling is suspected and also to challenge the credibility of police.

Milwaukee criminal defense attorney Craig Mastantuono, of Mastantuono Law Office SC, said any substantial data could be particularly useful in “borderline” cases to raise the issue of whether an officer disproportionately pulls over people of a certain race.

“Then profiling becomes more germane of an inquiry and keeping data can help,” he said.

Reliable data to support a history of initiating stops of people of primarily one race invites a challenge of police practice, said criminal traffic lawyer Basil Loeb of Schmidlkofer, Toth & Loeb LLC, Wauwatosa.“That can certainly go to their credibility and be used early on in a proceeding to determine whether the stop or arrest is valid,” he said.

But others questioned the practical significance the data would have on cases.

Given that officers have constitutional protection for pretext stops for a minor violation such as a broken taillight, criminal defense attorney Michele Anne Tjader suggested the data would have minimal impact on the outcome of a case.

“I don’t think it would have been used in an evidentiary sense as far as providing defense counsel with a basis to challenge traffic stops and so forth,” she said.

Tjader, of Tjader Law SC, Madison, said the data would be more beneficial from a policy standpoint in that law enforcement could evaluate any racial inconsistencies in traffic stops.

Regardless of the results, the data collection would be most useful in analysis, rather than case strategy, said Milwaukee County District Attorney John Chisholm.

“Race is almost never a factor in an individual case review,” he said. “But the information is always there, so the benefit is really more of a macro review of the process and trying to determine discrepancies.”

Proponents of the repeal argued the data collection during traffic stops is duplicative and tedious, given that race, gender and age are already collected on citations.

Mastantuono called those arguments “baloney” and said the data collection requires little more than checking a box.

“Let the data speak for itself,” he said. “It sounds to me that people fear the answers.”

But more than two months of empirical data would be needed to paint an accurate picture of police practices.

The impetus for the collection of racial and gender-based data during stops is rooted in a 1999 task force appointed by Gov. Tommy Thompson, which recommended police record the data to “build accountability and protect the integrity of law enforcement agencies.”

In 2007, Gov. Jim Doyle advanced the initiative by forming the Commission on Reducing Racial Disparities in the Wisconsin Justice System. A report was issued the following year and recommendations that law enforcement conduct a county-by-county baseline study of racial disparity using existing traffic citation and arrest data to determine disparity levels in the state were adopted in the 2009-11 state budget.