Progress uneven as lawmakers work toward policing reform
In an exhaustive report with 48 suggestions to improve New Hampshire policing and racial bias, released last fall, the commission recommended the state implement implicit bias trainings for new police officers. (Dave Cummings photo)
Joseph Lascaze didn’t need to sit on a commission to become acquainted with racial discrimination in New Hampshire policing. The reality came to him uninvited.
Last year, the smart justice organizer for the American Civil Liberties Union of New Hampshire bought a white Mercedes. Since then, Lascaze, who is Black, has been pulled over at least three times. Each time the alleged infractions were small and none resulted in tickets. But all of them made him feel like a target.
“I got pulled over for a driving infraction, such as swerving in my lane, in between the yellow line and the white line; I was avoiding a pothole in the road,” Lacsaze said. “The officer pulls me over, proceeds to question me extensively on what I was doing in that town, on that road. Did I travel that road often? And had I traveled that road the day before then?
“I told him, ‘It must have been a different Black guy in a white Benz because I wasn’t on this road yesterday,’ ” he said.
As New Hampshire continues a yearlong effort to fix its policing laws, advocates such as Lascaze say one reform could provide crucial context: data collection.
He is among those pushing for a law requiring police departments to record the race and ethnicity of those they pull over. The proposal also gives residents the option to specify their race or ethnicity on their driver’s license.
“The challenge here is we don’t know what we don’t know,” said James McKim, president of the Manchester NAACP. “We don’t have sufficient data to know the magnitude of discrimination that is going on in law enforcement.”
For a while, the idea seemed to have momentum. A commission convened by Gov. Chris Sununu and filled with law enforcement representatives and civil rights advocates – including Lascaze himself – signed off on the concept, and Sununu endorsed it. In January, Senate Majority Leader Jeb Bradley introduced a sweeping omnibus bill that included data collection.
But last month, after a series of intensive debates in Senate committees and on the Senate floor, the Senate Republican caucus moved to remove that data collection from its reform efforts, citing it as unnecessary and a breach of privacy.
Created last summer in the wake of the death of George Floyd during an arrest in Minneapolis in May, the Governor’s Commission on Law Enforcement Accountability, Community, and Transparency finished multiple months of work with 48 recommendations. Each one was endorsed by Sununu, who predicted support across party lines.
“I am confident these reforms, which received unanimous support from the commission, will be enacted with bipartisan support,” Sununu said. “And, as I have long said, cost will not be a barrier to implementation.”
But months later, progress has been uneven.
Some measures are moving ahead, such as a fund to help police departments voluntarily add body cameras, a bill to make police disciplinary procedures open to the public, and a new requirement that officers inform drivers that they can refuse a vehicle search.
Others, such as the effort to collect racial data on police stops, have stalled.
And some were never even introduced, such as the release of the “Laurie List” – the redacted list of officers with documented misconduct complaints.
Reform advocates have tried to keep their focus on measures that are moving ahead, but the changes have been frustrating.
“This is not something that – we don’t just pick this up and do this every couple of years,” Lascaze said. “… The bottom line is we need to act on what we heard.”
Some lawmakers argue that the commission report was never expected to be a rigid to-do list.
“I want to make it very clear that the work of the LEACT commission was and will continue to be respected as we move forward,” said Sen. Sharon Carson, a Londonderry Republican and the chairwoman of the Senate Judiciary Committee, in a heated debate on the Senate floor last month.
But, she added: “These are recommendations that are being forwarded to us, the people’s representatives. We just do not automatically adopt whatever a commission comes up with no matter what the subject is.”
A spur for change
Soon after Floyd’s death, activists in New Hampshire understood this moment was different.
“After George Floyd was murdered, the country decided that they wanted to get smart on racism (and) implicit bias in situations that affect communities of color, right?” Lascaze said. “By the end of the year, people were tired of reading books on implicit bias and racism, systemic racism.”
Communities from Portsmouth to Keene began organizing peaceful demonstrations with sizable turnout, calling for changes in practice and statute on how police conduct themselves among communities of color. It wasn’t long before Sununu chose to meet the moment with his own action: the creation of the 14-member commission tasked with proposing reforms.
The parameters of the commission were wide, focusing on everything from implicit racial bias among officers to improving mental health treatment. But after 26 meetings across the state, the recommendations that emerged would fall into two main categories: training and accountability.
Early on in the process, Lascaze said, it appeared that the first category would receive much more attention than the second.
“Training was this big topic and hot-button issue,” Lascaze said. “ ‘Oh, we need to train officers better, we need to train officers, we need to train officers.’ And while I do agree that there is a level of training that needs to be implemented, transparency and data collection are necessary components to give us an overall holistic view of the criminal justice system in New Hampshire. What exactly is happening? Where are these instances of discrimination occurring? Where is this targetization happening? That is why we need this information.”
HB 544: A hurdle for reform?
For all their frustrations, advocates for the recommendations of the Governor’s Commission on Law Enforcement Accountability, Community, and Transparency say the New Hampshire Senate has given earnest, if incomplete, support for change.
It’s the House, they argue, that’s emerging as a direct threat.
Among the provisions tacked on to the House’s budget trailer bill, which passed last week 200-181, is a proposal that drew immediate controversy.
The amendment, a copy of House Bill 544, would ban “divisive concepts” from being taught in New Hampshire schools.
Supporters say it’s a proposal specifically designed to remove racism from education by barring “critical race theory” and preventing teachers from teaching that one race is worse than another.
“The committee … heard testimony that the teaching and training of the concepts prohibited by this bill cause disharmony, resentment and hatred,” wrote Rep. Terry Roy, a Deerfield Republican, in a report after the bill was recommended by a House committee in a 10-9 party-line vote.
Opponents contend it will muzzle teachers, bar a more nuanced teaching of American history, and work against anti-racism initiatives.
For those following the commission reforms, the potential impact of the bill goes beyond schools, however. It could also undo many of the implicit bias trainings rolled out by state and local law enforcement agencies last year, some fear.
“The wording is such that any training would be illegal if done by state government or by an organization that has contracts with state government,” said James McKim, president of the Manchester NAACP and a member of the commission. “… The police training council could not provide any of the training that would be deemed divisive.”
Roy, in his report, sees it differently.
“The majority believes teaching about actual history, including institutional racism that has existed and the steps we have taken to eradicate it, are important aspects of a proper education and a healthy and diverse workplace,” he wrote, speaking for the Executive Departments and Administration Committee. “The bill, simply put, prohibits teaching that one race is at fault in perpetuity for challenges and disadvantages faced by another race.”
As lawmakers in the Senate begin to weaken or reduce some recommended changes from the commission, advocates fear the House bill could jeopardize the one pillar of the recommendations that remains wholly intact.
For now, passage into law seems less than likely. Gov. Chris Sununu has strongly disagreed with the standalone bill and said he would veto it.Though Sununu does not have a line-item veto option over the budget, his opposition makes its inclusion in the final budget in June a dim prospect.
Still, McKim says it’s firmly on his radar.
“It has major ramifications for any training done that is trying to raise awareness of the discrimination that is happening,” McKim said. “That understanding is the route to us becoming a less divisive society.”
Since the release of the report, police departments have taken independent steps to change their training practices and policies, particularly around the use of chokeholds, the restraining method that prosecutors say caused Floyd’s death by asphyxiation.
And for its part, the Police Standards and Training Council, the agency that trains all state police, local police, and corrections officers in the state, has already moved toward adapting new training to account for racial bias, spurred by an executive order issued by the governor in October.
New Hampshire lawmakers have approved those measures. One of the law enforcement-reform bills that passed during the legislative session in the aftermath of Floyd’s death was House Bill 1645, which banned the use of chokeholds outright, with certain exceptions. This year, state senators have unanimously endorsed a separate bill to codify the new training standards by the Police Standards and Training Council into law.
“It’s consistent with what is happening through rulemaking, but puts it in statute,” said Sen. Becky Whitley, a Concord Democrat who has pressed for police reform.
But when it comes to the transparency measures, not all have been as heartily endorsed.
“When you start peeling back layers of transparency and start trying to instill accountability, that’s where it seems that we’re having a lot of pushback,” Lascaze said.
Both the House and Senate have approved legislation to make police disciplinary hearings open to the public under the state’s right-to-know law, with some exceptions made for confidential information.
But one critical item – releasing the names of officers on the Laurie List – has seen no legislative action. New Hampshire’s exculpatory evidence schedule, known colloquially as the “Laurie List,” contains around 250 officers whom the Attorney General’s Office deems to have credibility issues due to “founded” incidents on the job.
The offenses range from excessive force to falsifying evidence. But since the creation of the list, the names remain redacted.
A lawsuit brought by the ACLU and several New Hampshire news outlets to release an unredacted version of the list is currently pending in the New Hampshire Supreme Court. But the commission recommended that the Legislature take action first and mandate that the list be released.
Under the commission’s recommendation, the Attorney General’s Office would notify officers on the list and allow for a six-month confidential appeal process for those who felt they were unfairly included. As long as an appeal wasn’t pending, the public could see the officer’s name.
That suggested bill never made it to the House or Senate floor. A drafting committee made up of representatives of the Attorney General’s Office, law enforcement, the ACLU, and others never put that piece into their recommended legislation, and lawmakers declined to bring it forward on their own
Meanwhile, disagreements over the items that have made it to the Legislature have resulted in party-line divisions.
A splintering Senate
When the primary bill for commission recommendations emerged in January, it carried broad bipartisan support.
Introduced by Bradley, Senate Bill 96 attempts a range of changes, from requiring school districts to publicize the memorandum of understanding they have with their school resource officers – who are employees of the police department – to establishing and financing a fund for providing body cameras.
Among those items: mandatory data collection of race and ethnicity at traffic stops and other police interactions.
But as the session progressed, Republican senators qualified that support and made tweaks to the bill while questioning whether the data collection was necessary.
Speaking on the floor, Carson pointed to an existing federal system, the National Incident-Based Reporting System, in which police departments submit reported crimes to the FBI, including the race and ethnicity of the victims of the crimes and the alleged perpetrator.
“I think that there’s really this misconception that we do not collect data, and that is not true,” Carson said.
Reform advocates have countered that the NIBRS does not contain information about people the police pull over but do not charge – a piece they say is a crucial data point in assessing the conduct of officers.
But Carson argued that expanding data collection on race and ethnicity was itself a form of racial profiling, and a violation of every driver’s privacy.
“Five years ago, I think there would really be an outcry that we were racial profiling individuals,” she said. “We don’t want to do that. We just don’t want to do that.”
Whitley rejected that charge.
“The data that we’re seeking to collect isn’t identifiable, and therefore there aren’t any privacy concerns here,” she said, speaking on the floor.
In the end, senators removed the option to allow a person applying for a driver’s license to include their race, as well as the requirement for data collection. Instead, the bill would put those measures before a legislative study committee.
“I’m in the somewhat unique position of being the sponsor of the bill but agreeing with my colleague,” said Bradley of Carson’s objections.
Bradley said that making the data collection optional would run the risk of ending with incomplete information.
“We could do it, and try to find out, but my guess is that there would be complaints that the efficacy of collecting the data was not good enough, and future legislation could remove that provision of it being optional,” he said.
Sen. David Watters, a Dover Democrat, disagreed.
“Would it be fair to say that the system proposed here about self designation is likely to produce far better data than a police officer at a stop looking at a driver and saying: ‘Looks kind of white to me; looks kind of Black to me; looks kind of Hispanic to me; looks kind of Asian to me; looks kind of other to me’?” he asked on the floor.
Over a nearly hour-long, heated discussion, the change was made along party lines, 14-10.
As the debate raged on the Senate floor last month over police data collection for traffic stops, several senators took a moment to note the timing. The discussion was taking place nearly a year after the death of Floyd, and just as the jury trial of Officer Derek Chauvin, who is charged with second-degree murder in the death, was getting underway.
“This week, the nation is revisiting the trauma as the man who killed George Floyd goes on trial for murder,” Whitley said on the Senate floor. “We have the opportunity today to listen to our fellow Granite Staters and act to make New Hampshire a fairer and more equitable state.”
For many in the state, Floyd’s death dislodged any feelings of ignorance or indifference about discrimination, opening the doors for reforms from the city to the statewide level.
Now, advocates are wondering how long the momentum can last.
“That is for, many of us, the $64,000 question,” said McKim, of the Manchester NAACP. “We’ve seen this kind of similar outrage in 1954. With Medgar Evers. We saw a similar expression of outrage in 1968, with the killing of Dr. Martin Luther King, and we’re seeing it now.”
Those past incidents spurred major reforms, from the Civil Rights Act of 1964 to the Fair Housing Act of 1968, McKim said.
“But,” he added, “there have been times after those major events that people went back to their normal lives and the fight kind of disappeared into the woodwork. So the question of whether this time is different is a relevant one.”
McKim says that it is.
“I for one think that it is different,” he said. “This is the time to strike while the iron is hot, I think, and (in) these few months still while the memory of these killings are fresh, and as the trial is going on right now, people are following.”
For Lascaze, there is no turning back now.
“This wasn’t a ‘get smart’ thing for me,” Lascaze said, referring to the surge in Black Lives Matter activism. “This wasn’t a ‘by the end of the year I’m going to get to this.’ This is my life. This is something that I live.”
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