Around the Block

On curfew ordinances and bias   A few weeks ago, the Village of Prairie du Sac amended their curfew ordinance to allow police officers to use their discretion when citing underage individuals. One board member spoke out at length over concerns that the curfew ordinance in general will adversely affect minorities and people of color. The data supports this. Several other board members acknowledged the truth of the data and echoed her concerns--particularly about racial inequality when it comes to the application of law. The change to the ordinance passed with one lone nay vote. Curfew ordinances are troubling. The Prairie du Sac ordinance, which it shares with Sauk City, criminalizes the presence of any underage individual between 10:30 p.m. and 4 a.m. There is no presumption of innocence. If the individual is out after hours, they are guilty. There is no judge or jury involved. Coffin v. United States, a Supreme Court decision in 1895, codified the presumption of innocence into United States law. The Court said, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” This principle dates back 1500 years to 5th century Roman law. The current curfew ordinance makes the police officer effectively judge and jury. This goes against over a thousand years of Common Law, shared by European, Islamic, and Jewish societies. The presumption of innocence is so fundamental that it’s not even explicitly stated in the Constitution--it didn’t occur to the writers that it had to be explained. Curfew ordinances are based on the judgement of the officer. In fact, the specific change made to the Prairie du Sac ordinance was to give officers the flexibility to enforce--or not enforce--the curfew. Prior to the change, an officer had to cite anyone and everyone for a curfew violation if they met the conditions. The amended ordinance empowers the officer to use their judgement to enforce the ordinance. That seems to be an improvement, doesn’t it? But the board member brought up the problem of implicit bias. The concept of implicit bias states that there are unconscious judgments we all make on the basis of the colors of one’s skin. The Village of Prairie du Sac board members considered this, as far as how implicit biases can come into play with the amended ordinance. This conversation--implicit bias in terms of race--has become commonplace in America today. The data is there that all of us have implicit biases that cloud our judgement based on the color of one’s skin. But that fact is always followed by something like, “But your officers aren’t racist, of course.” It’s a knee-jerk reaction in response to implicit bias. If biases are unconscious, aren’t we all implicitly racist? Of course not, we say. It’s not us, or those we know--it’s others. The concept of implicit bias is a troubling one, not only because of what it entails, but because it’s not entirely clear how it works, if it can be eliminated, what exactly it is. If the bias is implicit and unconscious, how can we stop it within ourselves? This conversation about the judgement of the officer doesn’t even need to go that far--it’s not necessary to talk about implicit racial bias. The truth is our judgment--all of us--is biased in a simpler and fundamental way. This casts doubt on the concept of an objective officer when it comes to who to cite for a curfew violation. Our perception has bias. Prior to concepts like race and gender, our perception of things like space and extension are not truly objective. Since the 19th century a field of study called Color Psychology has revealed that colors bring out certain moods and emotions in people. It really is quite simple--and we’re surrounded by its use in marketing and decoration. A 2015 study by Andrew J. Elliott, titled “Color and psychological functioning: a review of theoretical and empirical work,” found the following: Red stimuli have been shown to receive more attention. Visual search times were faster. Blue light has been shown to increase alertness and performance. Participants exposed to blue light reported greater mental alertness. Red stimuli undermine intellectual performance. Participants who viewed red on an intelligence test cover performed worse. Most importantly: Viewing red on oneself or others has been shown to increase judgments of aggressiveness and dominance. Participants rated males wearing red as more dominant and aggressive. We need to really think about the last piece of data: the mere perception of someone wearing red makes us think they’re being aggressive. It’s completely unnecessary to have the awkward and imprecise conversation about whether an individual officer has implicit racial bias, because it is a fact that basic perception is swayed by mere color. Regardless of an individual’s race, the color of their t-shirt strips objectivity from perception. This is why Prairie du Sac’s amended curfew ordinance is wrong. By giving officers the choice to enforce the ordinance, that choice is biased at the most basic level. Ironically, the ordinance before amendment was better. That version required officers to cite anyone and everyone for a curfew violation. No judgement or choice was involved. If every single person was cited, there could be no chance of implicit bias. Even that didn’t work, however, as chief Strunz noted the curfew ordinance was rarely enforced. That fact--introduced as a positive--is actually the opposite, as officers were already enforcing the ordinance when and where they wanted. The iconic image of Lady Justice--who stands blindfolded with the scales of justice in her hand--is done a disservice when the law is enforced based on judgement. Our very perceptions are biased.  The law should apply to all or none, not some.