FBI Law Enforcement Bulletin - May02

8/9/2019 FBI Law Enforcement Bulletin - May02

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ISSN 0014-5688 USPS 383-310

Features

Departments

7 VICAP AlertUnidentified Body

8 PerspectiveRacial Profiling

13 Bulletin ReportsJuvenile JusticeCorrections

Hostage/Barricade

Management

By Gregory M. Vecchi

Making Ethical DecisionsBy John R. Schafer

Law Enforcement

and the ElderlyBy Lamar Jordan

Consent SearchesBy Jayme Walker Holcomb

1

May 2002Volume 71Number 5

United StatesDepartment of JusticeFederal Bureau of Investigation

Washington, DC 20535-0001

Robert S. Mueller IIIDirector

Contributors opinions and statementsshould not be considered an

endorsement by the FBI for any policy,program, or service.

The attorney general has determinedthat the publication of this periodical is

necessary in the transaction of thepublic business required by law. Useof funds for printing this periodical hasbeen approved by the director of theOffice of Management and Budget.

The FBI Law Enforcement Bulletin(ISSN-0014-5688) is published

monthly by the Federal Bureau ofInvestigation, 935 PennsylvaniaAvenue, N.W., Washington, D.C.

20535-0001. Periodicals postage paidat Washington, D.C., and additionalmailing offices. Postmaster: Sendaddress changes to Editor, FBI LawEnforcement Bulletin, FBI Academy,

Madison Building, Room 209,Quantico, VA 22135.

Editor

John E. Ott

Associate Editors

Cynthia L. Lewis

Bunny S. Morris

Art Director

Denise Bennett SmithAssistant Art Director

Stephanie L. Lowe

Staff Assistant

Linda W. Szumilo

This publication is produced bymembers of the Law Enforcement

Communication Unit,William T. Guyton, chief.

Internet Address

[email protected]

Cover Photo

George Godoy

Send article submissions to Editor,FBI Law Enforcement Bulletin, FBIAcademy, Madison Building, Room

209, Quantico, VA 22135.

Making ethical decisions consists ofa series of choices.

Tactical and negotiation teams mustwork together with the on-scenecommander to resolve hostage/barricade situations.

20

14Law enforcement must prepare to dealmore effectively with the elderly andconsider those crimes that most oftenvictimize senior citizens.

18 Technology UpdateFBI Intelligence Bulletin

19 Focus on the MediaPress Interviews

24 Book ReviewActual Innocence

25Courts consider a number of factorswhen determining if a consent tosearch has been given voluntarily.


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May 2002 / 1

ntragency conflict betweenlaw enforcement tacticalteams, such as special weap-

Hostage/Barricade ManagementA Hidden Conflict Within Law EnforcementBy GREGORY M. VECCHI

Ions and tactics (SWAT) and crisisnegotiation teams (CNT), occursseemingly as a result of competing

paradigms on how best to handlehostage/barricade (H/B) situations.Much literature exists on the strate-gies and tactics employed by theseteams; however, there is minimal

research on how the overall para-digms of SWAT and crisis negotia-tion (CN) influence conflict be-tween the teams and, moreimportant, how their differing

perspectives influence the out-comes of H/B situations.

CRISIS MANAGEMENTTEAMS AND THEIRENVIRONMENTS

H/B situations constitute the ul-timate form of conflict resolution

because, if not managed in an opti-mal manner, death or serious injurylikely can result. As such, H/B man-

agement is a very specialized activ-ity, even within the law enforce-ment community, and requiresspecial training and experience be-yond what law enforcement officers

generally receive. Therefore, agen-cies have developed specializedtactical and negotiation units to ad-dress these types of situations. Mostlocal, county, state, and federal lawenforcement agencies maintain of-ficers on their tactical and negotia-tion teams on a collateral or part-time basis. Due to the collateralnature of these duties, agencies usu-ally fill positions within tactical and

negotiation teams with officers whowork full time in other positionswithin the organization, such as pa-trol, investigations, administration,narcotics, organized crime, or vice,

Gregory M. Vecchi


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2 / FBI Law Enforcement Bulletin

...agencies can usecontemporary

negotiation theoryto focus on the

importance of reducingand managingthe conflict....

depending on the size and type ofthe department (e.g., local, county,state, or federal). Once activated fortraining scenarios or actual situa-

tions, these individuals leave theirdaily routine, rally together, and de-

ploy as required to address thesituation.

Tactical and negotiation teamsoften are highly regarded and con-sidered elite, both within and out-side of law enforcement circles, be-cause they tend to generate a highdegree of interest from upper-agency management, politicians,and, especially, the media. A prop-

erly handled H/B situation avertscatastrophe and creates heroes,while poorly managed ones createdisasters and can cost individualstheir careers. Therefore, theseteams usually are well funded andequipped and their members arecompetitively screened. For ex-ample, SWAT teams often have the

best tactical equipment available,such as special rifles and handgunswith laser/night sites, armored ve-hicles and aircraft, night vision de-

vices, and camouflaged uniformsand equipment. In addition, SWATteam applicants usually must passgrueling physical fitness standardsand possess excellent marksman-ship skills before agencies selectthem for the team. Another exampleconcerns the negotiation team,which oftentimes has special equip-ment, such as throw phones,1lis-tening and video devices, and sur-veillance/communication vans.

Additionally, negotiator applicantsmay have to compete with others toattend specialized training schools,which they must successfully com-

plete before joining the team.

The high-profile nature of theseteams, as well as the competitive-ness of joining their ranks, results inteam members who have a high de-

gree of solidarity, confidence, andesprit-de-corps for their unit, espe-cially in their shared team-relatedculture and perspectives. This con-stitutes an important factor whenconsidering conflict between theteams because the culture and per-spective of each team differ im-mensely. For example, tacticalteams, generally paramilitary in na-ture, embody the core of police cul-ture, which means reacting to situa-

tions and fixing them now. To them,the suspect presents a threat theymust neutralize. In sharp contrast,negotiators prefer to take their time

separateness defines and promotestheir respective cultures while ad-vancing their bonds, both sociallyand professionally.2

In addition, conflict potentiallycan magnify between the teams be-cause the characteristics of H/Bsituations often become politicaland media events, which oftentimesresults in intense external and inter-nal pressure on the responsibleagency on how best to handle andreport the situation. This factor in-creases the likelihood of friction

between the SWAT and negotiationteams, as each promotes their strate-

gic recommendations. At this point,clashing parochial paradigms andpoints of view may converge into anintense tug-of-war between theteams over how best to resolve thesituation, which may result in theteams becoming focused oncountering each other instead of

jointly focusing on the existing situ-ation and mission.

REDUCTION ANDMANAGEMENT OF

CONFLICT BETWEENTEAMS

During any H/B situation, sav-ing lives is the primary goal. Al-though both teams share this goal,their approaches to achieving itsometimes are different and com-mensurate with their perspectivesand world views. For example, tac-tical teams often favor physicallydynamic methods to neutralize athreat, such as containing, assault-

ing, and sniping. On the other hand,negotiation teams generally favoran emotion-lowering behavioral ap-

proach, such as active listening andneeds assessment. In each case,

and negotiate with suspects in aneffort to get them over their crises toend the situation peacefully andnonviolently, thereby saving lives.To the negotiators, the suspect is ahuman being who responds to needs

fulfillment and active listening.Thus, conflict develops betweentactical and negotiation teams as aresult of the individual organiza-tional culture of each team. This


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May 2002 / 3

both teams attempt to influence theon-scene commander (OSC) by

providing assessment and recom-mending options. If both teams

agree on the recommended options,the potential for conflict is low.However, where little or no agree-ment exists between the teams onoptions, the potential for conflictcan escalate.

When teams disagree on howbest to resolve the situat ion, aunique conflict triangle existscomprising the OSC, the SWATcommander, and the negotiationcommander. Similar to a quasi-arbi-

tration process, the OSC acts as thearbitrator, listening to the argu-ments and views of the SWAT andnegotiation commanders, who rep-resent their respective team con-stituencies. Throughout the inci-dent, the OSC, acting like anarbitrator, renders decisions on how

best to address the situation, basedon what the teams present. If thecomplimentary and sometimes con-flicting information is not ad-dressed properly, the resulting con-

fusion tends to create a zero-sum3environment between the twoteams, thus increasing their com-

petitive positions on how best tohandle the situation.

In addressing this uniqueproblem, agencies can use contem-porary negotiation theory to focuson the importance of reducingand managing the conflict betweenthe two teams by applying athree-stage processunderstand,

prenegotiate, and negotiateusingthe concepts of relationshipoutcomes, prenegotiation, and col-laboration and intrateam/interteamnegotiation.

Stage One (Understand):Fostering Relationships

This stage involves reducingthe potential for conflict before it

surfaces, which is accomplished byeach team understanding and ac-knowledging the importance andlegitimacy of each other, especiallythrough fostering relationships.Throughout this continuing stage,the potential for conflict diminishesas both teams develop and promotesocial bonds through continuousinteraction, thereby reducing theirorganizational cultural barriers.The strategies and underlying atti-

tudes by which the two teams relateare indicators of their relationshipand serve as guides to determinewhether or not to apply structuralinterventions.

To further clarify these indica-tors, departments can use certainstrategies4 to deal with four possibleresults relating to the importance ofsubstantive and relationship out-comes for a given situation. In hos-tage/barricade situations, this re-lates to the importance of therelationship between members of

the tactical and negotiation teams(are they going to have to continueto work together in the future?) andthe importance of the content of the

outcome of their work (the desire tosave lives). In this model, peopleuse a trustingly collaborative strat-egy when relationship and substan-tive outcomes are important, anavoidance strategy when relation-ship and substantive outcomes areunimportant, a firmly competitive

strategy when substantive out-comes are high and relationshipoutcomes are low, and an openly

subordinate strategy when relation-

ship outcomes are high and substan-tive outcomes are low. Of greaterimportance is the notion that indi-viduals adopt different strategies indifferent relational and content con-texts.5 This becomes a significant

point, especially concerning thecontext of the interaction betweenthe teams and their environment.

In any H/B situation, both thetactical and negotiation teams, bytheir very nature, place great impor-tance on substantive outcomes (sav-

ing lives); however, the importanceplaced on their relationship out-comes determines much of the po-tential conflict. The degrees of teaminteraction, positive or negative or

present or absent, influence theoverall relationship and the impor-tance placed on it by each team. Inthis area, positive team interactioncan encourage the reduction of po-tential conflict before the onset of aH/B situation.

Many agencies have fosteredrelationships through eliminatingtactical and negotiation rhet-oric by placing and, therefore,

perceiving SWAT operators and

Gregory M. Vecchi


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hostage negotiators as elements ofthe same team, albeit the fact thatthey remain distinct teams, whichhas led to the use of trustingly col-

laborative strategies between theSWAT members and the negotia-tors during deployment. In addition,some SWAT and negotiation teamsroutinely train as a unit, which fur-ther fosters positive relationships

because all of the differing elementshave a chance to display and prac-tice their unique skills during train-ing with the assurance that the situ-ation will dictate the strategyand tactics of the team, rather than

parochial preset positions.Stage Two (Prenegotiate):Setting the Stage forCollaboration

The importance of each teamunderstanding and acknowledgingthe significance of their interdepen-dence and relationship outcomes iscritical; however, this alone willnot necessarily prevent conflictsthat may arise during H/B situa-tions. Therefore, both teams first

must be poised to negotiate theirperspectives with each other to fa-cilitate collaborative interaction tosolve H/B situations as they occur.This posturing or stage setting isprenegotiation.

Prenegotiation is the time pe-riod before negotiations take placewhen agencies consider a multilat-eral track as a possible alternative toa unilateral track to a solution in aconflict.6 For SWAT and negotia-

tion teams, this represents an up-front agreement to define the prob-lem and make a commitment tonegotiate jointly to obtain the bestsolution possible. In prenegotiation,

SWAT operators and negotiatorsagree to avoid parochial perspec-tives (unilateral track), address H/Bsituations from both perspectives

(multilateral track), and make col-laborative decisions on which op-tions to choose as dictated by theunfolding H/B situation. The

prenegotiation stage also requiresboth teams to accept final decisionsuniformly by the OSC without

prejudice to the other team. Depart-ments should address any disagree-ments in an appropriate after-actionreview process subsequent to theincident being resolved.

Stage Three: (Negotiate): UsingCollaboration and Intrateam/Interteam Negotiation

Once the teams successfullycomplete stage one and stage two,they can move easily into the nextstage. In stage three, both teamswork together and among them-selves toward achieving their com-mon goal of saving lives and bring-

ing the H/B situation to a peacefulend if at all possible. Memberscan accomplish this by collab-oration and intrateam/interteamnegotiation.

Collaboration entails building acommon understanding of a prob-lem from varying points of view asthe basis for choosing a collective

course of action.7 This represents aprocess where parties can construc-tively explore their differences andsearch for solutions that go beyondtheir own limited vision of what is

possible. Law enforcement effec-tively has used collaboration for re-solving conflict and advancingshared visions. It implies interde-

pendence, involves joint ownershipof decisions, and assumes collec-tive responsibility for the future di-

rection of the domain.

8

Agenciesmay find collaboration useful inhandling problems displaying char-acteristics such as:9

The problems are ill defined, ora disagreement exists abouthow they should be defined.(Is it a hostage or crisissituation?)

There may be a disparity ofpower and resources fordealing with the problem.(The OSC may be orientedtactically, or there is insuffi-cient money to pay officerovertime expenses if thesituation becomes protracted.)

Stakeholders may have differ-ent levels of expertise anddifferent access to informationabout the problem. (SWATmembers know the locationof the suspect within thestructure and the negotiatorsdo not.)

Technical complexity andscientific uncertainty exists.(Suspect reactions to policeaction are difficult to predict.)

Law enforcement...has used

collaboration forresolving conflict

and advancingshared visions.


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May 2002 / 5

Differing perspectives on theproblem often lead to adver-sarial relationships among thestakeholders. (Should law

enforcement take a tacticalor negotiated approach?)

Incremental or unilateralefforts to deal with the prob-lem typically produce less thansatisfactory solutions. (Forcinga tactical resolution withoutregard for other options.)

Existing processes for address-ing the problems have provedinsufficient and may evenexacerbate them. (Continuednegotiations with no success.)

A win-win approach is based onthe concept that each party in thenegotiation represents a problemsolver and that all the parties share aneed to solve the same problem.10 Inthis style, negotiators keep the goalin mind and focus exclusively onreaching the goal. When applyingthe concept of teamwork to negotia-tions, at the outset it is made clearthat the sole purpose of the negotia-

tion is to discuss a mutual problem,identify areas of agreement, iden-tify areas of disagreement, under-stand why there is disagreement,identify and explore alternatives,and, finally, reach a mutually ac-ceptable resolution.11

Although both the tactical andnegotiation teams may have differ-ing perspectives or world viewsabout how best to handle H/B situa-tions, they both share the underly-

ing goal of saving lives and bringingthe situation to a peaceful resolu-tion. Interteam negotiations(SWAT and negotiators) andintrateam negotiations (SWAT

commander and SWAT operativesor negotiation commander and ne-gotiators), in training and in actualdeployment, promote the under-

standing that everyone shares thesame goal and seeks to turn poten-tial adversaries into partners. Thisteam approach reduces potentialconflict because it gives ownershipof possible options ultimately pre-sented to the OSC to everyone on

both teams. Thus, instead of pictur-ing SWAT and negotiators as op-

posing teams, they are viewed as

one team, composed of interdepen-dent elements, akin to offensive(tactical) and defensive (negotia-tion) elements, with the goal ofworking together to solve the same

problem, albeit from di fferentperspect ives and with differentmotives.12

THE IMPACT AND ROLEOF THE ON-SCENECOMMANDER

On-scene commanders havetremendous impact on the poten-tial conflict between tactical and

negotiation teams simply becausethey determine how a departmentwill address and ultimately resolvea H/B situation. However, arriving

at an acceptable resolution andaverting potential disaster requirethe OSC to rely on the SWAT andnegotiations commanders, who pro-vide the OSC with the necessaryassessment and options to make in-formed decisions to resolve the situ-ation in the safest way possible.One expert believes that, Influencemust replace the use of formal au-thority in relationships with subor-dinates, peers, outside contacts, and

others on whom the job makes onedependent.13 This holds true espe-cially between the OSC and theSWAT and negotiations command-ers and it requires the OSC to bal-ance influence and power, muchlike a mediator-arbitrator, whoencourages the teams to collabora-tively and collectively conceivestrategic options based on their per-spectives and available informa-tion, yet who still reserves the rightto make the final decision on which

option to choose. The OSC whouses this approach also encouragesand fortifies the principles of thethree stages by developing a web ofinfluence, which can be mutuallyadvantageous to all who interactwithin it.14

On-scene commanders can fos-ter continued understanding and

positive relationships between theteams by balancing the time theyspend with each team according to

the needs of the work, rather than onthe basis of habit or social prefer-ence.15 This constitutes an impor-tant consideration for OSCs be-cause they inadvertently may favor

Gregory M. Vecchi


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one team over the other, strainingthe team relationships, especially ifthey agree more with one team

based on their previous experience

as a SWAT operator or negotiator.The OSC can greatly influence

whether or not departments encour-age prenegotiation between theteams. Parties shift from unilateralsolutions toward multilateral ornegotiated ones when the unilat-eral track is blocked or overlycostly or when the alternativetrack is more promising or com-

paratively cheaper.16 Thus, keepingprenegotiation alive between the

teams requires the OSC to move theteams in a multilateral direction byunderstanding and acknowledgingthe perspectives of each team andtheir strengths and weaknesseswhile, at the same time, applyingtheir specific skills and tactics to the

problem, based on the parameters ofthe situation and on the experienceof the OSC. This approach tends to

poise both teams toward collabora-tive negotiation and subsequentconsensus of action because they

will perceive the distribution ofpower between them movingtoward equality.17 This constitutesan important consideration be-cause, oftentimes, a real or per-ceived imbalance of power exists

between the tactical and negotiationteams. For example, this power im-

balance may result from the percep-tion by some officers on the tacticalteam that the field of hostage nego-tiations is somehow less legitimate

because it represents a relativelynew phenomenon. Additionally, areal power imbalance may occur

based on the fact that, in manycases, the SWAT team respondsfirst to a H/B situation and takes

control with little or no regard forthe negotiation team.

Finally, on-scene commanderscan encourage collaboration and

intrateam/interteam negotiationthrough properly choosing influ-ence tactics and by communicatingthem effectively. Certain H/B situa-tions may cause OSCs to selectoptions or tactics that conflict withthe perspectives and recommenda-tions of one or both teams, whichmay be due to their past experiencesor political mandates outside of theOSCs control. Thus, when dealingwith the teams in these situations,

OSCs must preserve their continuedefforts to collaboratively negotiatetheir perspectives and options by

hostage/barricade situations on a re-sponse continuum ranging from atactical response using force to a

purely nontactical response using

negotiation. This dichotomy resultsin differing perspectives and skills,which SWAT and negotiationteams exhibit, and a potential forconflict.

To reduce this conflict poten-tial, under the full support of the on-scene commander, the tactical andnegotiation teams should strive tounderstand each other by fosteringrelationships, prenegotiating by set-ting the stage for collaboration, and

negotiating options through col-laboration and consensus. In doingso, options have a higher measure ofvalidity because teams processthem through two general perspec-tives, rather than just one, and, moreimportant, both teams may claimownership of the options, therebymoving onto more pressing issuesinstead of dwelling on one. This ap-

proach allows the two teams theflexibility of agreeing to disagreeon certain issues leading to the rec-

ommended options, yet remainingjointly committed to the course ofaction on which they have settled,thereby providing the on-scenecommander with reliable assess-ment and options for making in-formed decisions.

Teams manage conflict when itdoes not interfere substantially withthe ongoing functional (as opposedto personal) relationship betweenthe parties involved.19 In hostage/

barricade situations, tactical and ne-gotiation teams must work togetherwith the OSC to resolve the incidentin the safest and most nonviolentmanner possible by using theirunique perspectives and skills in a

influencing them to accept any divi-sive outcomes in a palatable way,

based on rationality and the needsof those to be influenced. Oneexpert believes that, Effectivecommunications become interwo-ven coils of silk in the web of influ-

ence that help ensure success oftactics.18

CONCLUSION

Depending on the circum-stances, agencies may deal with

On-scene commandershave tremendous

impact on the potentialconflict between

tactical and

negotiation teams....


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way that is consistent with the over-all goal of saving lives.

Endnotes

1 Specialized telephones that are literallythrown, usually through a window, to wherethe subject is located. These telephones are usedto establish direct communication between thenegotiator and the subject.

2 L.G. Bolman and T. E. Deal,ReframingOrganizations: Artistry, Choice, and Leader-

ship, 2nd ed. (San Francisco, CA: Jossey-BassPublishers, 1997), 217.

3 An outcome where one side loses and theother side wins; as opposed to a win-winoutcome where the needs of both sides are met.

4 G. T. Savage, J. D. Blair, and R. L.Sorenson, Consider Both Relationships andSubstance When Negotiating Strategically, inNegotiation: Readings, Exercises, and Cases,

eds. R. J. Lewicki, D. M. Saunders, and J. W.

Minton (Boston, MA: Irwin McGraw-Hill,1989), 32-49.

5 Ibid.6 I.W. Zartman, Prenegotiations: Phases

and Functions, in Getting to the Table: The

Processes of International Prenegotiation, ed.J. Stein (Baltimore, MD: Johns HopkinsUniversity Press, 1989).

7 B. Gray, Collaboration: The ConstructiveManagement of Difference, inNegotiation:Readings, Exercises, and Cases, eds. R. J.Lewicki, D. M. Saunders, and J. W. Minton(Boston, MA: Irwin McGraw-Hill, 1989),111-126.

8 Ibid.9 Ibid. These problems also are characteris-

tic of H/B situations, which are highlighted inparentheses.

10 J. G. Zack, The Negotiation ofSettlements: A Team Sport, inNegotiation:Readings, Exercises, and Cases, eds. R. J.

Lewicki, D. M. Saunders, and J. W. Minton

(Boston, MA: Irwin McGraw-Hill, 1994),328.

11 Ibid., 333.12 Ibid.13 B. Keys and T. Case, How to Become an

Influential Manager, inNegotiation: Readings,Exercises, and Cases, eds. R. J. Lewicki, D. M.Saunders, and J.W. Minton (Boston, MA: IrwinMcGraw-Hill, 1990), 204-209.

14 Ibid.15 Ibid., 210.16 Supra note 4, 8.17 Supra note 4.18 Supra note 13, 214.19 L. Greenhalgh, Managing Conflict, in

Negotiation: Readings, Exercises, and Cases,

eds. R. J. Lewicki, D. M. Saunders, and J. W.Minton (Boston, MA: Irwin McGraw-Hill,1986), 6-13.

Special Agent Vecchi serves in the

FBIs Miami office.

May 2002 / 7

he U.S. Park Police are investigating thediscovery of an unidentified male on April

VICAP AlertAttention: Homicide andMissing Person Units

T13, 2000, at approximately 5:30 p.m. The decom-posed body was discovered in Beaver Dam Creek,located on the grounds of the U.S. AgriculturalResearch Center in Beltsville, Prince GeorgesCounty, Maryland.

Crime Scene

The victim was described as a white male,between 30 and 35 years of age, about 63" in height,and weighing more than 200 pounds. The color and

length of hair were undetermined. He was wearing abrown wool jacket, brand name L.L. Bean, size 48tall; a green hooded sweat jacket; a T-shirt, brandname Haines, size XL with the Nike logo; blue

jeans, brand name Wrangler, size 36x36; and

Original Rugged hiking shoes, brand nameOutback. A set of keys on a large safety pin andfour $1 bills also were found in the victims clothing.

The victim had several strands of barbed wirewrapped around his neck. The cause of death mayhave been blunt force trauma to the head, along withstrangulation. The victim may have been in the waterfor as long as 2 months. Partial fingerprints areavailable, as well as two facial reconstructions.

Alert to Law Enforcement

Any agency with information about this victim or

with similar solved or unsolved crimes should contactDetective A. Kapetanakos of the U.S. Park Police at202-690-5065 or Special Agent Kevin Crawford ofthe FBIs Violent Criminal Apprehension Program(VICAP) at 800-634-4097.

Unidentified Body


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he simple collection of data will neither pre-

vent so-called racial profiling nor accurately

Perspective

Collecting Statistics in Responseto Racial Profiling AllegationsBy Karen J. Kruger, J.D.

This isnt a problem that can be quantified just in termsof statistics.... Its like the guy who is unemployed; theunemployment rate for him is 100 percent. For peoplewho have been the victim of racial profiling, the statisticis 100 percent.1

U.S. Attorney General John Ashcroft

Tdocument a law enforcement agencys activities as ameans of protecting it from public criticism, scrutiny,and litigation.2 Statistics represent meaningless num-

bers unless they are put in a relevant context or usedas a legitimate means of comparison.3 Standing alone,statistics, much like legal arguments, can be used tomake or defend any position that someone may adopton an issue. Law enforcement agencies, therefore,must take additional steps to ensure that the numbersthey collect accurately reflect reality and support the

positive enforcement and crime prevention efforts thatthey conduct.4

UNDERSTANDING THE TERMINOLOGY

Understanding the terminology of racial profilingconstitutes the first step to gathering relevant statisti-cal information. As some commentators have noted,the use of race for law enforcement purposes isunconstitutional when it is the factor used in selecting

potential criminal suspects.5 Other commentators havedescribed the problem as a targeting of individualsfor police investigations based on theirrace alone.6

Because the Constitution requires that a lawenforcement officer have reasonable suspicion to

stop and detain a person,7

no one disputes thatstopping or detaining individuals because of their raceor ethnicity is unconstitutional. As two researchersdescribe it: There is no one list of factors that gives

rise to reasonable suspicion, as the varieties ofsuspicious behavior are as diverse as the types ofactivity punishable under the criminal law. However,reasonable suspicion may not be based on race

alone.8 No Fourth Amendment action, be it aninvestigative detention, an arrest, or a search, can beundertaken based solely upon race. Therefore, offi-cers who base theirTerry stops or other investigativeactivities on a suspects race alone violate the lawand are guilty of misconduct that very well may besufficient to terminate their employment.9 In short,no circumstances exist under which officers may stopcitizens based solely on their race, sex, religion,national origin, or sexual orientation. Rather, officersmust base stops on reasonable suspicionfacts andinformation that they can articulate, which, in turn,

lead to their sense of suspicion that a violation of lawhas been or is about to be committed.10

The law enforcement community must strive toremind the public and the press of the correct defini-tion of the problem, lest they come to believe thatrace has no importance in the investigation and

prevention of crime or that such uses are improper.

Ms. Kruger serves as anassistant attorney general

for the state of Marylandin Baltimore.


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May 2002 / 9

For instance, the race of an at-large suspect oftenrepresents an important identifying characteristicthat agencies must include in radio broadcasts.11

Similarly, law enforcement officials should

remain alert to any inappropriate use of terminologythat is not legally accurate or recognized, but appealsto the emotional or political aspect of this debate. Forexample, some legislative proposals use the termsconsensualand nonconsensualwhen setting param-eters for data collection relating to searches of motorvehicles. The term nonconsensualconveys that asearch was conducted by use of force against the willof the individual, rather than on a recognized legal

basis, such as incident to arrest.12 Law enforcementauthorities should avoid such misleading terminology

because it creates mistaken and

unfavorable impressions.EXPLORING THE PROBLEM

Apparently, the public hascome to believe that if the policeare required to keep a record oftheir investigative activities, theproblem13 of racial profilingwill be curtailed.14 While accurateand meaningful data collectionmay have some social science andmanagement value, it is fraughtwith pitfalls. In fact, the effort to

collect statistics may further erodethe publics trust in law enforce-ment and the morale among its members, as well asspend government dollars that could be better used onlaw enforcement training and education, communitycrime prevention, and drug treatment.

A more effective way to alleviate the problemscaused by the perception that police engage in racial

profiling rests with educationof the police and thepublic. Those officers who actually stop citizens onlybecause of their race are either ignorant of the law orare unethical or immoral. Training in constitutionallaw and ethics, along with effective first-line supervi-sion, would directly address this problem. It alsomay prove helpful for agencies to develop proceduresfor making more professional traffic stops thatdemonstrate sensitivity to this issue by including,

for instance, informing the driver of the facts that ledthe officer to make the stop. Those facts would, andmust, establish the reasonableness of the stop.15

Equally important are departmental policies,

supervision, and discipline. Law enforcement agen-cies should send a clear message to all personnel thatusing race alone as the basis for any investigative stopis unacceptable conduct and can lead to terminationfrom employment. In short, this is a zero toleranceissue. Officers who do not respond to training anddiscipline or appear simply immoral have no place inlaw enforcement.

A need also exists to educate the public. Agenciesshould convey to their communities that law enforce-ment is a difficult and dangerous profession and that

most who enter it do so for only

the best reasons. The public needsto know that the narrow scope ofthe racial profiling problem andthe U.S. Constitution protect themfrom such abuses and that suchabuses are not tolerated oradvocated by law enforcementagencies.

COLLECTINGTHE STATISTICS

These thoughts aside, theperception appears to exist that

the public wants law enforcementto do nothing more than collect

statistics, but with no apparent defined purpose. Ifagencies find themselves in a posture that requiresthis collectioneither by legislation or some kindof executive orderor decides to do so voluntarily,they should bear in mind some complexities andsophisticated issues that generally are not acknowl-edged as problems with statistical collection of thiskind.16

Methodology

The collection and application of statistical data isa scientific and academic exercise requiring a well-designed protocol.17 Most mandated law enforcementdata collection occurs as the result of a legislativecompromise or an effort to appease particular interest

Statistics representmeaningless numbersunless they are put ina relevant context orused as a legitimate

means of comparison.


11/35


groups and contains weak methodology. The proto-cols are determined not by academics or mathemati-cians but by legislators, governors, or other officialswho may have no training or expertise in the field of

statistics and, therefore, may pay little attention to thepurpose, quantity, or nature of the data that they needto collect.

Experts in the field should design the data collec-tion system and base it on a testable hypothesis. Theyshould include protocols that will ensure that the

process will collect empirical data for researchpurposes and not merely toprovide evidence for a particularadvocacy group or to falselydefend an errant officer.18 These

protocols must screen out other

behavioral variables that may beculturally or geographically basedor that include other relevant butnonracial factors.19 Examplesinclude highway safety studiesthat show African-Americanyouth as 50 percent less likelyto use seat belts than whites orHispanics.20 Similarly, trafficstops based on vehicle equipmentviolations may occur more often in some minorityneighborhoods because owners may have fewerresources to devote to repairing their vehicles.21

The data collection methodology also shouldrequire that agencies collect sufficient data to allowfor meaningful analysis. The notion of a statisticallysignificant number is important but rarely mentionedwhen discussing data collection. Primarily, agenciesmust ensure that they collect enough data over aspecific period of time to adequately appraise thecircumstances surrounding the types of stops thattheir officers make.

Implementation

With all of these elements in mind, the collectionof data must not burden the officers and agencies tothe extent that it has a chilling effect on enforce-ment. The record keeping by officers may becomequite time-consuming, interfere with their lawfuldiscretion, and create animosity with the public.22

There is even the potential for civil liability, depend-ing on the time required and the method used. Forexample, if a citizen has to remain on the sceneduring the time an officer needs to fill out an extra

form, the citizen may perceive this as an unlawfuldetention. Also, the collection of racial statisticsmay imply that race discrimination problems exist,thereby enhancing the publics negative perceptionsat the cost of both the morale and effectiveness ofofficers. Finally, officers become burdened withattempting to identify the race of motorists by sight

or by asking them outright, whichmay escalate tensions and createa dangerous, or at least uncom-fortable, situation for both

parties.23

The financial impact repre-sents another consideration in thedata collection process. Accurateand well-designed collectionmethods may require the purchaseof new computer equipment, thehiring of persons to input data,and the employment of experts toanalyze the meaning of the data.When a legislative body or

governing executive requires the collection of statis-tics, appropriate funding rarely is attached to themandate.24 Agencies must consider whether it is in

their communities best interests to impose such aburden on their budgets, rather than seeing thatmoney spent on crime prevention and enforcementefforts.

A data collection initiative also must take intoaccount the differences between municipal andhighway policing. The work of urban and suburbanofficers is responsive in naturethey engage in

police work when and where they are summoned.Their enforcement pattern depends on the character ofthe neighborhoods that they serve. Highway policingis more self-initiated and, arguably, calls for morediscretion. Conceivably then, municipal and highwaycollection models should be quite different from eachother. Moreover, it may prove useful for the collec-tion and analysis to distinguish between low and highdiscretion stops.25

Experts in the fieldshould design the

data collection systemand base it on a

testable hypothesis.


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May 2002 / 11

Analysis

Finally, the data collection process must include aclear direction for the analysis of the data. If agenciescompare the collected statistics to some demographic

statistic, what is the relevant demography or bench-marks? In a highway patrol situation, this issue provesespecially problematic because an interstate highwayhas neither a static population nor a countingmechanism, such as a census. To compare highwaystatistics to the local population is disingenuous

because the highway is populated with interstatetravelers. Similarly, when comparing urban data,agencies must establish a concomitant analysis of thelocal criminology and appropriate benchmarks or acomparative control group.

Even the U.S. Department

of Justice acknowledges thatjurisdictions need assistancein designing statistical

benchmarks and determiningcomparative populations26

and that the characteristicsof a traffic stop are difficult tointerpret.27 Likewise, theauthors research has yet tofind an analytical model thathas established a meaningful

benchmark for comparison ora sufficiently sophisticated

method of interpretation.28With respect to these

benchmarks, another neglected issue arises in thediscussion concerning the analysis of the data col-lected. A racial disparity, if one can be established, isonly legally significant under the Equal ProtectionClause of the Fourteenth Amendment if individualsstopped solely on the basis of their race were simi-larly situated to others who were not stopped.29 Inother words, the correct comparison is notto the

people living in the neighborhood or driving on thehighway who did notengage in the same conduct as

the person stopped. Rather, the complainant mustshow that those who didengage in the same conductwere not stopped because they were not of a minorityrace. Therefore, to demonstrate racial bias, thestatistics used by the complainant must show that

officers had an equal opportunity to stop others whowere similarly situated to the suspect person but whothey did not stop solely because they were not of aminority race.30

CONCLUSION

The collection of data concerning the issue ofracial profiling cannot be taken lightly. Superficially,it may seem like a relatively painless way to appease

public and political concerns, especially to those lawenforcement executives who are confident that theirdepartments are functioning properly. However,significant pitfalls exist. If agencies do not base theircollection methodology on a well-designed scientific

model, the resulting statisticscan be manipulated easily to

serve as a sword, rather thana shield. To then defendagainst this sword, agenciesmay be forced to attack the

basis of their own statisticalcollection efforts, whichultimately may be perceivedas an effort to engage in acover-up.

There is no question thatagencies must address the

public concerns about racialprofiling and the related

issues of public confidenceand respect for the law

enforcement community. However, it remains naiveto believe that data collection is the sole answer.Indeed, if agencies do not properly conduct the datacollection process, it may only serve to exacerbate the

problem and undermine legitimate crime-fightingefforts.

Endnotes1 Bush and Ashcroft Announce Racial Profiling Initiative, Criminal

Justice Newsletter31, no. 8 (2001): 2-4.2 For an overview of racial profiling see, Richard G. Schott, The Role

of Race in Law Enforcement,FBI Law Enforcement Bulletin, November2001, 24-32.

The opinions expressed in this article are the authors aloneand not those of the Maryland Attorney General or his staff.

Mark C. Ide


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...the datacollection process

must include a

clear directionfor the analysis

of the data.

3 See, for example, T. Ginsberg, High Probability of Befuddlement,Baltimore Sun, July 15, 2001, sec. C, p. 5, noting that [e]ven if statisticalfindings are repudiated, they can still perpetuate statistical myths; andH. MacDonald, The Myth of Racial Profiling, City Journal11, no. 2(spring 2001), Their alleged evidence for racial profiling comes in two

varieties: anecdotal, which is of limited value, and statistical, which onexamination proves entirely worthless.

4 For information on racial profiling data collection systems, seeDeborah Ramirez, Jack McDevitt, and Amy Farrell, NortheasternUniversity,A Resource Guide on Racial Profiling Data CollectionSystems: Promising Practices and Lessons Learned, NCJ 184768 (U.S.Department of Justice, November 2000).

5 Grady Carrick, Professional Police Traffic Stops: Strategies toAddress Racial Profiling,FBI Law Enforcement Bulletin, November2000, 8-10.

6 Abraham Abramovsky and Jonathan I. Edelstein, Pretext Stops andRacial Profiling AfterWhren v. United States: The New York and NewJersey Responses Compared, 63 Alb. Law Rev. 725, 729 (2000). SeeU.S. Department of Justice,A Resource Guide on Racial Profiling DataCollection Systems: Promising Practices and Lessons Learned (Washing-ton, DC, 2001), 3, defining racial profiling as police-initiated action that

relies on...race...; and Earl M. Sweeney, Ohios Statewide Effort to EndProfiling,Police Chief, July 2001, 16.

7Terry v. Ohio, 392 U.S. 1 (1968). See David Rudovsky, LawEnforcement by Stereotypes and Serendipity: Racial Profiling and Stopsand Searches Without Cause, 3: 1 Journal of Const. Law 296, 306(2001).

8 63 Alb. Law Rev. 725, 729; and supranote 7 (Rudovsky).

9 A recent legislative proposal (2000) inMaryland offered that an officer who engagedin racial profiling be fined $1,000 and berequired to attend training. The Marylandlegislators appeared surprised when severalchiefs of police informed them that they wouldfire any officer they found to have committed

racial profiling.10Terry v. Ohio, 392 U.S. at 30-31.11 SeeBrown v. City of Oneonta, 221 F.3d

329 (2d Cir. 2000); and supra note 3(MacDonald) noting that DEA has identifiedcommon characteristics of drug couriers thatmay include the ethnic makeup of drug-trafficking organizations. MacDonald alsoasserts that [t]he antiprofiling crusade thriveson ignorance of policing and a willfulblindness to the demographics of crime. See also Hoover, Why theResistance to Collecting Race Data on Police Traffic Stops,PoliceLabor Monthly, July 2000, 5.

12 See, for example,New York v. Belton, 453 U.S. 454, 460 (1981).13 It continues to be difficult to discern how prevalent the practice of

racial profilingusing race as the sole reason for initiating an investiga-

tive stopreally is. Many anecdotal accounts are based only on theperception of the individuals who were stopped and who may or may notbe aware of other factors that officers considered in determining that theyhad reasonable suspicion to stop these individuals. Others argue that

statistical evidence exists; however, that evidence often seems to havebeen collected under questionable circumstances and by nonobjectiveparties. Those statistical studies also may suffer from some of the short-comings that this article discusses, see supra note 3 (MacDonald). Othercommentators pointedly disagree, see supra note 7 (Rudovsky), 298-303.

14 See supra note 6 (U.S. Department of Justice), 13, asserting thatdata collection can identify potential police misconduct and deter it.

15 Supra note 6 (Sweeney), 18.16 At present, a growing recognition exists that the attendant issues to

data collection are unknown, uncertain, or unresolved, as demonstratedby the references noted in this article. See, in particular, Fridell, Luaney,Diamond, Kubu, Scott, and Laing,Racially Biased Policing: APrincipled Response, Police Executive Research Forum, July 2001.

17 The U.S. Department of Justice has suggested a core set of datato be collected, consisting of nine elements. U.S. Department of Justice,Traffic Stops and Data Collection: Analyzing and Using the Data

(Washington, DC, February 2000), 5-6. See also supra note 6 (U.S.Department of Justice) and supra note 16 (Fridell et al), 126-128.

18 On this issue, the author gratefully acknowledges the insightsprovided by Carl Milazzo and Aimee B. Anderson during their lecture,Current Legal Issues in Racial Profiling: 2000 Update, presented at the

annual conference of the International Association of Chiefs of Police inNovember 2000.

19 Supra note 7 (Rudovsky), 365.20 Benson, Crawford, and Mitchell, 1998, cited in U.S. Department

of Transportation,Blue Ribbon Panel to Increase Seat Belt Use AmongAfrican-Americans: A Report to the Nation

(Washington, DC, 2000).21 Supra note 11 (Hoover).22 U.S. Department of Justice, Traffic

Stops and Data Collection: Analyzing and

Using the Data (Washington, DC, February2000), 9-10.

23 Jerry A. Oliver and Alicia R. Zatcoff,Lessons Learned: Collecting Data on OfficerTraffic Stops,Police Chief, July 2001, 23;

supra note 11 (Hoover), 2; and supra note 16(Fridell et al.), 129.24 See generally supra note 6 (U.S.

Department of Justice).25 Supra note 6 (U.S. Department of

Justice), 9-10.26 Supra note 6 (U.S. Department of

Justice), 56.27 Supra note 6 (U.S. Department of

Justice), 53.28 See supra note 3 (MacDonald) noting that no traffic study to date

comes near the requisite sophistication; and supra note 16 (Fridell et al.),137.

29Yick Wo v. Hopkins, 118 U.S. 356 (1886). See also supra note 16(Fridell et al.), 133-134, noting that these data cannot prove causationonly correlation.

30 See supra note 7 (Rudovsky), 322; and Chavez v. Illinois StatePolice, 251 F.3d 612, 645-48, (7th Cir. 2001), without comparativeracial information, plaintiffs cannot prove that they were stopped,detained, or searched, when similarly situated whites were not.


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Bulletin Reports

May 2002 / 13

Juvenile Justice

The National Criminal Justice Reference Service presentsRestorative Justice Conferences as an Early Response to YoungOffenders (NCJ 187769). This report describes restorative justiceconferencing, a promising form of early intervention for veryyoung offenders that brings together offending youths with theirvictims, and supporters of both, with a trained facilitator. Youthswho become involved in the juvenile justice system at an earlyage are significantly more likely to continue offending than theirolder counterparts. Because very young offenders are at greaterrisk to reoffend and progress to serious delinquency, effectiveearly intervention is crucial. Early offenders pose special chal-lenges, but restorative justice conferencing offers unique benefits,

as shown by the Indianapolis Restorative

Justice Conferencing Experiment. Asdescribed in this Office of Juvenile Jus-tice and Delinquency Prevention Bulletin,such conferencing holds youths account-able for their actions and allows them torepair the harm that they have causedwhile involving families and victims inthe process. For a copy of this report, callthe National Criminal Justice ReferenceService at 800-851-3420 or access itsWeb site at http://www.ncjrs.org.

Corrections

Census of Jails, 1999 presents facility characteris-tics of persons under the jurisdiction of local andfederal jail authorities on June 30, 1999. The reportsummarizes changes in the number of local jailsduring the 1990s; average daily population andnumber of men, women, and juveniles confined inlocal jails; number of inmates and facilities by size offacility; inmate sex, race, and conviction status; andfacility-rated capacity and percent of capacity occu-

pied. Additionally, the document includes informationon the 25 largest jail jurisdictions, such as number ofstaff and staff characteristics, facility health servicesand inmate health, and facility programs. For a copyof this report (NCJ 186633), call the National Crimi-nal Justice Reference Service at 800-851-3420 oraccess its Web site at http://www.ncjrs.org.

Bulletin Reportsis an edited collectionof criminal justice studies, reports, andproject findings. Send your material forconsideration to: FBI Law EnforcementBulletin, Room 209, Madison Building, FBIAcademy, Quantico, VA 22135. (NOTE:The material in this section is intended tobe strictly an information source and shouldnot be considered an endorsement by theFBI for any product or service.)


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Making Ethical DecisionsA Practical ModelBy JOHN R. SCHAFER, M.A.

rookie police officersmelled alcohol on his

partners breath as he en-Atered the squad car at the beginningof the shift. The senior officer ad-mitted he drank one glass of winewith dinner but insisted that hecould drive safely. To avoid a con-frontation, the rookie did not pro-test. Shortly thereafter, the squadcar driven by the senior officer col-lided with another vehicle. Thedriver of the other vehicle died 3weeks later from the severe injuriessustained in the accident. The traf-fic officer investigating the accidentsmelled alcohol on the seniorofficers breath but did not reportthis fact nor did he ask the seniorofficer to take a breath test. A

subsequent lawsuit alleged that thesenior officer caused the accident

because he drove under the influ-

ence of alcohol. During the internalaffairs inquiry, the rookie faced ahigh-stakes ethical dilemma, tell thetruth or lie to protect the senior of-ficer. Because the rookie failed totake action when he encountered hisfirst ethical dilemma, he struggledwith an even greater ethical quan-dary. If the rookie lies, he gains im-mediate trust and acceptance fromfellow police officers. If the rookietells the truth, he risks alienationand the possibility of administrativeaction.

Ethical conflicts arise when theactions of one person or a group of

people interfere with the interests of

another person, group of people, orthe community as a whole. Unfortu-nately, ethical decision-making

models, no matter how elaborate,cannot adequately portray the com-plexity of ethical dilemmas.1

Contrived scenarios in theclassroom differ significantly fromreal-life ethical dilemmas. In theclassroom, detached participants re-view facts, calmly discuss options,and provide idealized solutions thatneatly fit a prescribed code of eth-ics. Choosing the right answer in anartificial setting requires little ef-fort. On the other hand, making theright decision in real life demandsstrength of character because the re-ality of circumstances often blursthe line between right and wrong.


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May 2002 / 15

Modeling ethicalbehavior canmotivate othersto act ethically.

Special Agent Schafer is assigned to the FBIs Lancaster,California, resident agency and also serves as a member of theFBIs National Security Divisions Behavioral Analysis Program.

Police officers must develop deci-sion-making strategies before theyconfront ethical dilemmas. The pro-cess officers use to make ethical

decisions does not differ from thedecision-making process used byordinary people who face ethical di-lemmas in their everyday lives.

IDENTIFYING ETHIC CODES

Ethic codes and guidelines pro-tect professionals from themselves,as well as from those who, they per-ceive, abuse the power of their pro-fession.2 Nonetheless, the inherent

power of a code of ethics rises nohigher than the collective moralcharacter of those who subscribe tothe code. Theoretically, a code ofethics sets guidelines for ideal be-havior. However, in reality, it repre-sents minimum standards of behav-ior. These minimum standards often

become the goal, rather than a tripwire to signal unacceptable behav-ior.3 Typically, after achievingminimum standards, motivation toachieve higher moral and ethicalstandards becomes less ardent.

Ethic codes encompass a widerange of issues but cannot includeevery possible scenario. Necessar-ily vague guidelines provide flex-ibility for individual interpretationsand for unique circumstances.4

Nonspecific issues confound theethical decision-making process

because individuals must rely onobjective standards, as well assubjective values when seekingsolutions.

Mandatory EthicsThe foundation of ethic codes

rests either on the rule of law oradministrative policies. Federal,

state, and local governing bodiesenact legislation to ensure a mini-mum standard of legal conformity.Ethic codes based on the rule of lawcarry legal sanctions. Administra-tive policies, often based on the ruleof law, impact employment statusor violate the values of the groupthat agreed to the set of self-im-

posed ethical standards. In eithercase, violating mandatory ethics

can trigger legal or administrativesanctions, a change in job status, the

permanent loss of employment, orany combination thereof.

Aspirational Ethics

Aspirational ethics representthe optimum standard of behavior.5

Unlike mandatory ethics, aspira-tional ethics differ among individu-als depending on their personal val-ues, cultural influences, and senseof right and wrong. Aspirationalethics serve as an internal standardagainst which an individual judges

personal behavior. For example, nolaw obligates a person strolling on a

beach to save a child drowning 50feet from shore. Conversely, a per-son may feel a moral obligation toassist the drowning child becauseaspirational ethics compel a personto strive for optimal moral and ethi-cal outcomes.6

Personal Orientation

Personal orientation takes intoaccount individual values, cultures,

religious beliefs, personal biases,and other idiosyncrasies.7 The de-gree to which outward behavior dif-fers from internal behavior expecta-tions contributes to the amount ofintrapersonal conflict experiencedas a result of making an ethicaldecision. Conflicting feelingsregarding a perceived duty and theneed for peer acceptance also con-tribute to intrapersonal stress.8

Ethical Decision-Making Process

The ethical decision-makingprocess consists of three questions:What should I do? What will I do?9

How does the decision I make


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comport with my personal orienta-tion?10 Ethical decisions engenderfeara fear of change in the statusquo. People strive to maintain equi-

librium in their lives and seldom actin a manner that disrupts this equi-librium.11 When confronted with anethical decision, a persons abilityto make objective decisions often

becomes warped by this inherenttendency to maintain equilibrium.

In a classroom setting, anyonewho answers other than, Therookie should tell the truth, risksindignation and ridicule. In reality,however, an array of emotions

clouds the answer. When making anethical decision, a person conductsa personal risk-benefit analysis.12

Many ethical dilemmas presentboth short- and long-term solutions.An inverse relationship exists be-tween short-term and long-termethical solutions. Short-term solu-tions often benefit the individualand harm society, while long-termdecisions tend to hurt the individualand benefit the community.

Short-term SolutionsReporting the senior officer

carries certain short-term risks. Therookie not only brings into questionthe senior officers ability to drive

but, by inference, his suitability forduty. The rookie places himself inan awkward position when he re-

ports the senior officer. Ideally, therookie makes the right ethical deci-sion; however, in reality, he mostlikely will lose the trust of his fel-low officers and suffer certain so-cial sanctions, including ostracism.In this scenario, the personal risksof confronting the senior officer faroutweigh the personal benefits. The

rookie knew the answer to the ques-tion, What should I do? but chosenot to act accordingly. Studies con-firmed that people confronted with

ethical decisions do less than theybelieve they should do.13 Peopletend to choose a course of actionthat benefits themselves first overthe benefit of others or the commu-nity at large.

Long-term Solutions

Long-term ethical solutionspresent a more complex set of cir-cumstances with higher personalrisks and an intangible measure of

worth. For example, the rookie maysave a life if he reports the seniorofficer; however, the life spared

becomes immeasurable because, inreality, the loss never happened.

...violatingmandatory ethicscan trigger legal

or administrativesanctions....

Without knowing the true impact ofhis ethical decision, the rookieswords, Because of my actions to-day, I saved a life, ring hollow to

police peers and especially to thesenior officer. In reality, the rookieexposes himself to detrimentalconsequences without realizing therewards of the sacrifice rendered.More likely than not, the rookiewill second-guess his decision to

knowingly place himself in a pre-carious social and professional

predicament.People who make bad initial

ethical decisions often get caught inthe ethical trap. As a result of a

primary ethical decision with an ad-verse outcome, a secondary ethicaldilemma results. Solving a second-ary ethical dilemma becomes inher-ently more difficult because notonly does the secondary decisionneed a resolution but the primarydecision, now judged as errant, re-quires justification. If the rookietells the truth, he faces both admin-

istrative sanctions for failing to re-port the senior officer and, ironi-cally, the same social sanctions hefeared when he decided initially notto report the senior officer. If therookie lies, he may save himself andthe senior officer from legal andadministrative action, but, depend-ing on the rookies personal orienta-tion, he may experience life-longguilt and regret. The life lost fromthe accident never can be recov-ered, and, in retrospect, a decision

to report the senior officer becomesblatantly obvious. The rookie nowmust face the consequences of hisdecision and wonder, If I only hadthe courage to make the right deci-sion in the first place, I could havesaved a life. Once ensnared in theethical trap, few people escape.

FINDING RESOLUTIONS

People compare the fit ofvarious ethical decision-making op-tions to their personal orientation.14

A good fit maintains personal equi-librium; whereas, a bad fit increasesintrapersonal conflict, stress, andguilt. Rationalization hastens the



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May 2002 / 17

return of intrapersonal equilibrium.Primary ethical decisions with goodoutcomes resolve more easily. Forexample, if the senior officer com-

pletes his shift without incident, therookie can rationalize his decisionto allow the senior officer to driveunder the influence of alcohol be-cause nothing happened. Primaryethical decisions with bad outcomestake an extra measure of rational-ization to resolve. In extreme cases,no amount of rationalization bringsequilibrium. Making appropriate

pr imary ethical decisions maycause some degree of discomfort in

the short term but may save a life-time of guilt, remorse, and shame.

AVOIDING THEETHICAL TRAP

Living an ethical life reducesthe number of ethical dilemmas a

person faces. Unethical people in-stinctively refrain from inappropri-ate behavior in the presence of anethical person, especially a personwho holds unethical people ac-countable. If the rookie historically

made ethical decisions regardingboth large and small unethical acts,then the probability of the seniorofficer coming to work intoxicatedlessens significantly. In the eventthe senior officer came to work in-toxicated, the rookie could offer thesenior officer two options, take theday off and go home or face theconsequences. If the rookie habitu-ally made ethical decisions, the actof reporting the senior officer willmeet the expectations of therookies peers. In fact, the other of-ficers probably would experiencemore shock if the rookie did not actethically. In this event, the senior

officer likely would become the vic-tim of his own bad decision, ratherthan the victim of betrayal.

Modeling ethical behavior can

motivate others to act ethically. Thenext time a merchant offers a policeofficer a free cup of coffee or ameal, the police officer could say, Iappreciate your generous offer, butIll pay my way this time. Learninghow to tactfully make ethical deci-sions may provide the necessarycourage for others to act in a similarmanner. Practicing ethical decisionmaking on small matters renderslarger ethical decision making less

formidable.

consulting a trusted friend, ethiccodes, or legal guidelines could pro-vide a more objective perspective.Officers should avoid making ethi-

cal decisions when time prevents athorough review of the availableoptions. Notwithstanding, some-times, no amount of thoroughanalysis can lift the burden of thedecision.17

CONCLUSION

An ethical decision consists ofa series of choices, not simply onedecision. Making bad primary ethi-cal decisions increases not only thenumber of choices but also the fu-ture impact of those choices. Moreimportant, a bad primary ethical de-cision spring-loads the ethical trap,resulting in an increased potentialfor legal or administrative action orunresolved intrapersonal conflict.

Ethical dilemmas challenge theintellect because of the conflictinganswers to the questions, Whatshould I do? and What will I do?If a person must choose betweentwo options that do not oppose one

another, selecting an option be-comes a matter of choice and not adecision between right and wrong.In most cases, choosing right overwrong takes courage because

people who make ethical choicesoften subject themselves to socialand professional ridicule. Ethicaldecisions build personal character,

but not without pain.

Endnotes

1

Nancy D. Hansen and Susan G. Goldberg,Navigating the Nuances: A Matrix ofConsiderations for Ethical-Legal Dilemmas,Professional Psychology: Research and

Practice 30, no. 5 (1999): 495-503.

Time constraints also may re-strict clear thinking.15 When cir-cumstances limit the time availableto evaluate ethical decisions, offi-cers should seek temporary solu-tions.16 For example, after therookie first smelled alcohol on thesenior officers breath, he could ex-cuse himself to make an urgent tele-

phone call. This temporary solutionprovides additional time for therookie to review more permanentsolutions. During this reprieve,


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2 Concept derived from David J. Miller,The Necessity of Principles in Virtue Ethics,Professional Psychology: Research and

Practice 2, no. 2 (2000): 107.3 Jody L. Newman, Elizabeth A. Gray, and

Dale R. Fuqua, Beyond Ethical DecisionMaking, Consulting Psychology Journal:Practice and Research 48, no. 4 (1996):230-236.

4 Todd S. Smith, John M. McGuire, DavidW. Abbott, and Burton I. Blau, ClinicalEthical Decision Making: An Investigation ofthe Rationales Used to Justify Doing Less ThanOne Believes One Should,Professional

Psychology: Research and Practice 22, no. 3(1991): 235-239.

5 Supra note 3, 1.6 Supra note 3, 2.7 Concept derived from Tory E. Higgins,

Making a Good Decision: Value from Fit,American Psychologist55, no. 11 (2000):1217-1230.

8 Concept derived from Gerald P. Koocherand Patricia Keith-Spiegel,Ethics inPsychology: Professional Standards and Cases

(New York, NY: Oxford University Press,1998), 19.

9 Supra note 4, 1.

10 Concept derived from supra note 7, 1224.11 Jo-Ellen Dimitrius and Mark Mazzarella,

Reading People (New York, NY: BallantineBooks, 1999), 16.

12 Supra note 7, 1218.

13 Supra note 4, 3.14 Supra note 7, 1224.15 Supra note 11.16 Supra note 11.17 Augustus E. Jordan and Naomi M. Meara,

Ethics and the Professional Practice ofPsychologists: The Role of Virtues andPrinciples,Professional Psychology: Researchand Practice 21, no. 2 (1990): 107-114.

Technology Update


T

TheFBIIntelligence Bulletin Is Online Weekly

he FBI has begun producing theFBI Intelligence Bulletin, a weekly

National Law Enforcement Telecommu-nications System (NLETS), the Re-gional Information Sharing Systems

(RISS), and Law Enforcement Online(LEO). The recipients include dulyauthorized members of all law enforce-ment agencies who have registered withthese networks.

The content of theFBI IntelligenceBulletin may be altered or expanded infuture issues, although the publicationwill not be used to transmit threatwarnings or urgent information. Inter-ested agencies may register for access tothese online systems by having theiradministrative offices contact eachnetwork directly for instructions.

online publication containing informa-

tion relating to terrorism in the UnitedStates. Its publication resulted from theFBIs meeting with state homelandsecurity directors and local law enforce-ment officials in late February. TheFBI

Intelligence Bulletin is intended toprovide information to patrol officersand other law enforcement personnelwho have direct contact with the general

public. It is hoped that these contactscould result in the discovery of crucialinformation and aid in prevention effortsagainst terrorism.

TheFBI Intelligence Bulletin istransmitted each Wednesday through the


20/35

May 2002 / 19

aw enforcement officials can succeed ingiving effective, dynamic press interviews by

Keep to the messages: Reinforce the messageswith statistics and brief anecdotes. The longer theinterview lasts, the greater the chance that state-ments made inadvertently may contradict those

messages. Answer in a positive manner: Do not restate a

negative premise because it only will be rein-forced by the listener. Be careful when usinghumor. Humor can be a great ally and help defusea situation, but it also can backfire. Critics willnot hesitate to take it out of context.

Reinforce the most important points: Prefacethem with statements, such as The best part ofthis program is... or Every member of thecommunity will benefit because....

Always plan for the worst-case scenario:Rehearse with a trusted colleague and talk toothers who have handled similar issues or prob-lems. Know exactly what the final words spokento the reporter will be.

Personalize the messages: Most law enforce-ment officials are not appointed or elected totheir positions because their views are radicallydifferent from those of the community. Speakersshould combine their hopes and beliefs with themessages they are communicating. The messen-ger and message should not be separated.

Project sincerity and empathy: Sincerity andempathy cannot be portrayed when speakers lookat their notes and read statements in a monotonevoice. Arranging briefing papers and thumpingthem on the lectern while saying, Thanks forcoming today, also does not exemplify thesequalities.

Make a friend: Everyone wants to be liked andhave friends. Reporters are no different. Respectthe many good ones, learn how tough their jobreally is, and be both available and credible.

Lfirst arming themselves with two crucial, yet basic,weapons. First, they must do their homework. Second,they must be themselves. Doing the homeworkrequires finding the three or four most importantmessages that the press needs to know and thenweaving those messages into every answer. Theaudience may hear the reporters questions taking thespeaker into various areas and directions, but theanswers consistently should include elements of thespeakers prepared messages. Being themselvesmeans that law enforcement officials must be thesame individuals when talking to the reporter as theyare when talking to respected superiors with whomthey feel comfortable. The speaker should feelrelaxed, look confident, and address reporters by thefirst name.

Additional suggestions are presented to assist lawenforcement officials to do the proper homework andbe themselves.

Focus on the Media

Special Agent Staszak serves as a media relationsinstructor in the Law Enforcement Communication Unitat the FBI Academy.

Making the Mostof Press InterviewsBy Dennis Staszak

Mark C. Ide


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he baby-boom generation,consisting of persons bornin the United States be-T

tween 1946 and 1960, is beginning

to turn gray. This generation hashad a profound socioeconomic im-pact on American society for thepast 50 years and, based on a com-parison of the Uniform Crime Re-ports from the 1960s through the1980s, this group even may havecontributed to the growing crimerates during that period as they en-tered their teens and their twenties.What will be the impact of this largedemographic group on crime, eitheras offenders or victims, in the newmillennium?

Today, approximately 1 out of8 Americans must face the realitiesof aging.1 Their situations varyas do the ways they deal with

growing older. Regardless of theircircumstances, however, most older

people say that they worry aboutcrime.

As a group, older people canrepresent a powerful and activeforce. As individuals, they can bevulnerable and may need help. Thisvulnerability sets the elderly apartfrom other age groups also con-cerned about crime because it re-quires an innovative community-wide approach to the singular

problem of the elderly and crime.With some reports showing thereare as many as 35 million peopleover the age of 65 in the UnitedStates, older people remain a grow-ing influence in our society.2 Thetime when America was a nation ofyoung people remains in the pastand will not likely return. If figures

today show older people dominat-ing, as the baby boomers growolder, the demographics will shiftmore dramatically toward an older

society.Law enforcement must con-

sider the elderly and those crimesthat most often victimize senior citi-zens. Additionally, they must ad-dress the older offender and focuson the challenge facing law en-forcement in dealing with thisgrowing segment of the population.

The Elderly and Crime

Generalizations are no morevalid when describing the agingthan when used in connection withother categories. No matter the

physical or mental condition ofolder persons, they still can becomea victim of crimejust like anyone


Law Enforcement and the ElderlyA Concern for the 21st CenturyBy LAMAR JORDAN, M.Ed.


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May 2002 / 21

...for many

seniors, the fearof crime may

alter theirlifestyles.

Mr. Jordan serves as an assistant professor of criminaljustice at Southern Utah University in Cedar City.

of any age. The difference lies, inpart, in the effects of the crime.Whatever the reasons leading tovictimization, the results could have

lasting and unhappy consequencesfor an older person who may belimited physically, emotionally, andfinancially.

The elderly may not recoverwith the same agility as when theywere younger. A broken hip as theresult of a mugging, the frighteningencounter with a criminal bent onharm, or the loss of savings to a conartist may diminish an older

persons quality of life and make

some elderly live the last of theiryears in fear and distress. As re-flected in reported crime, the eld-erly are not in the age group mostfrequently victimized by crime, fearof crime remains greater among thisage group. In fact, for many seniors,the fear of crime may alter theirlifestyles. Even if this fear remainsan extreme reaction or is based onan imagined, rather than an actual,situation, it proves no less debilitat-ing or stressful. The fear of crime

denotes a disturbing element in theexistence of many older people.

Types of Crime

While many crimes could in-volve any age, certain categoriesfrauds and scams, purse snatching,

pocket-picking, steal ing checksfrom the mail, and committingcrimes in long-term care settingsclaim more older than younger vic-tims.3 The litany of crimes againstthe elderly remains virtually end-less, with nearly every communityreporting such distressing accounts.

In particular, the elderly remainspecifically susceptible to fraudschemes that can destroy their

financial resources and personalsecurity. The FBIs OperationDisconnect revealed deliberatetargeting of older persons by conartists.4 The U.S. Postal InspectionService also revealed dispropor-tionate numbers of older potentialvictims.

Many elderly people have in-surance, pension plans, proceedsfrom the sale of homes, and moneyfrom Social Security and savings

that makes them attractive financialtargets for criminals. Their life-styles provide a friendly environ-ment for con artists. Because manyelderly live by themselves and arelonely, they remain more suscep-tible to telephone and mail fraud.They often have limited experiencewith investments, live in olderhomes in need of repair, and haveimmediate access to their money,much of it in cash.

Their fear of violent crime anddisregard for other types of crimemay make older people more vul-nerable to con artists. The oldergeneration often are more trustingand polite than younger people and

may intimidate more easily. Theytend to be complacent if the conartist is young; they fear inflation;they do not understand modern in-vestments; and they may forget de-tails. They often are persuaded byreferences to authority and embar-rassed to admit, or may not realize,that they were swindled.

Older victims have limited re-covery potential. Law enforcementusually cannot recover money lost

to a con artist. Often, older victimsexperience a loss of self-esteem be-cause they allowed themselves to beconned and may feel a loss of inde-

pendence because they can nolonger live alone or may havemoved in with their children. Someeven fear that their children will at-tempt to seize their assets. The lossof money can prove critical for any-one with limited resources, and itcan devastate many older persons.

Although all cities experienceburglaries, thefts, and vandalism,which affect individuals of all ages,these crimes remain especially dis-tressing for older people. The inva-sion of a persons living quarters or


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damage to their possessions mayprove economically and emotion-ally destructive. Property crimesmay seriously affect individuals

whose security and well-being aretenuous or who may have a limitedability to replace stolen or damaged

property. In addition to the loss ofpossessions, the elderly victim maynever feel secure in their home afterthe incident.

Some older persons may not re-port many crimes or suspicious ac-tivities because they may fear retali-ation. In the case of vandalism, theymay fear a repeat of the crime. The

elderly may see defacing a building,or damaging a lawn, plants, or anautomobile as a personal attack.

Some authorities suggest that asmany as 2.5 million incidents ofabuse of older persons may occur inany given year5 and generally rec-ognize that mistreatment can occur

both in domestic and institutionalsettings. As the older population in-creases, the incidents of mistreat-ment also likely will grow. Al-though the criminal justice system

has become actively involved in theprevention and prosecution of childabuse cases, the awareness of, and

protocols for, dealing with abuse ofthe elderly may not be as well de-fined in some jurisdictions. Despitethe number of estimated cases,abuse of the elderly remains a hid-den problem in many areas. Al-though the social services networkhas established numerous proce-dures for intervention and treat-ment, few exist in the criminal jus-tice system.

The Older Offender

Crime reports consistently haveshown that the majority of serious

offenses are committed by personsunder 25 years of age, and, in gen-eral, the likelihood a person willcommit a crime decreases with age.6

As people mature, they become ca-pable of more rational thought andcan calculate the probability ofsuccess in crime more accurately.Although the amount remains insig-nificant when compared to the totalnumber of arrests, crime by the eld-erly could become a critical concernin view of the increasing percentageof this population. The criminal jus-tice system will need to give moreattention to processing the elderly,

as well as custodial care for thosewho are incarcerated.

The greatest number of arrestsfor serious offenses committed bythe elderly is for larceny-theft,and most of these arrests are forshoplifting.7 Some studies describeshoplifting among the elderly asalarming and reaching epidemic

proportions.8 Aggravated assaultsremain the second highest num-

ber of arrests for serious offenses.Additionally, law enforcementagencies frequently arrest the eld-erly for other offenses, such as driv-ing under the influence and publicdrunkenness.9

Law Enforcements Response

The criminal justice system al-ways has depended on cooperationand communication between law

enforcement personnel and the pub-lic. Most successful prosecutionsrely upon the willingness of citizensto testify in court simply becausecitizens witness a large number ofcrimes.

Because the average age ofAmericas population is increasingrapidly, law enforcement agencieslikely may deal with a higher per-centage of older citizens in the fu-ture. More older people will witness

crimes, testify in court, and becomevictims of certain types of criminalactivity.

Law enforcement must under-stand the elderlys expectations,vulnerabilities, and fears to commu-nicate effectively with them. Addi-tionally, officers must realize thatdifferent groups of citizens havevarying needs and that persons over65 years of age now constitute thefastest growing segment of the U.S.

population Several factors play a

daily role in the conduct of law en-forcement duties that can workagainst good communication with

people of any age, but particularlywith many older adults. Time pres-sures, emotional situations, and thetendency to mask vision or hearingdeficiencies are factors that disruptthe communication process. To re-solve these potential problems, lawenforcement should remain alert toclues that many elderly people do

not hear or see well and then imple-ment compensation techniques.Older people not only can have

an increasing impact within theircommunities and upon government

but they generally are supportive of

Working with olderpeople will become anecessity for almostall law enforcement

agencies.


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May 2002 / 23

law enforcement and can constitutea valuable source of political sup-

port, information, and volunteer ca-pability. Misunderstandings about

older persons, however, can restrictthe effectiveness of even the best-intentioned law enforcement

programs.Working with older people will

become a necessity for almost alllaw enforcement agencies. Thosedepartments with community polic-ing objectives should develop spe-cial service and crime prevention

programs to assist members of theolder population.10

Many factors will facilitategood working relationships be-tween older citizens and law en-forcement agencies. Law enforce-ment personnel usually are highlymotivated and eager to assist oldermembers of their communities, andmost older adults look to law en-forcement officers to protect andhelp them. Although times havechanged, the attitudes of most older

people toward the police remainpositive.

Law enforcement agencies facesome challenges when workingwith older people. Usually, officershaving the most frequent contactwith older people are young andhave little experience working witholder adults. Few academies offertraining that would help new offi-cers understand the particular prob-lems and attitudes of older peopleconcerning crime and the criminal

justice system in general.The issue of crime and older

persons does not always involve de-pendency upon law enforcement.Many older people can assist lawenforcement authorities in severalsignificant ways. For example,

police and sheriffs departmentsoften find that older people makecapable volunteers because oftheir good work habits and past

work experiences. Because manyolder residents are at home duringthe day, they can assist law enforce-ment in other ways, such as report-ing crime and participating in

Neighborhood Watch programs.Law enforcement must rememberthat most elderly people can func-tion normally and that age aloneshould not hinder communicationor learning new skills, such as crime

prevention techniques.

officers to deal more effectivelywith the elderly.

The average age of law enforce-ment officers probably will not in-

crease as fast as the general popula-tion they serve. Law enforcement

personnel must learn to understandthe attitudes, capabilities, and limi-tations of older people and how tocommunicate in an effective andsensitive way with this importantand growing element of society. Inso doing, this will help law enforce-ment remain ready to address thischallenge in an adequate and pro-fessional manner.

Endnotes

1 U.S. Department of Justice, Bureau ofJustice Assistance, Office for Victims of Crime,TRIAD, Reducing Crime Against the Elderly,

An Implementation Handbook (Washington,DC, 1993), 11.

2 Senator John Glenn, NBC NightlyNews, August 24, 1998.

3 Supra note 1, 15.4 In 1993, the FBI implemented Operation

Disconnect, which targeted telemarketing fraudresulting in the indictment and conviction of402 subjects and the seizure of $7.65 million inproperty and $6.76 million in forfeiture. For

additional information on this investigativeeffort, see, http://www.fbi.gov/hq/cid/fc/ec/cases/criminalecu.htm.

5 Supra note 1, 20.6 Neal Shaver, Age, Differential Expecta-

tions and Crime Desistance, Criminology 30,February 1992.

7 U.S. Department of Justice, FederalBureau of Investigation, Crime in the UnitedStates 1998 (Washington, DC), 221.

8 Old Enough to Know Better, A StunningRise in Crime by Senior Citizens Creates aQuandry, Time, September 20, 1982.

9 Supra note 7.10 For example, TRIAD consists of a three-

way effort among sheriffs, police chiefs, and theAARP or older/retired leadership in the areawho agree to work together to reduce thecriminal victimization of older citizens andenhance the delivery of law enforcementservices to the older population.

Conclusion

A large percentage of the popu-lation is aging. The baby-boom gen-eration will impact as many facetsof society as senior citizens as theyhave throughout their lives. Thecriminal justice system and, in par-ticular, law enforcement face theaging population as a special chal-lenge for the 21st century. Policemanagers must take steps to im-

prove communication with thisgrowing segment. Law enforcementtraining academies should modifytheir programs to help prepare


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Book Review


Actual Innocence by Barry Scheck, PeterNeufeld, and Jim Dwyer, Doubleday, New York,

New York, 2000.Imagine what it would be

FBI Law Enforcement Bulletin - May02

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