Police Move to End ‘Stop and Search’ Abuses

By Ayo Johnson

Action is being taken to end abuses of a controversial law giving police powers to stop and search people without cause.

Attorney General and Minister of Justice Kim Wilson told The Royal Gazette that she recognised that the law, section 315F of the Criminal Code, which was enacted in response to rising gun and gang violence was subject to abuse and had been abused by the Police but that was being addressed.

“This has been brought to my attention and it has also been brought to the Police’s attention.

“I’m hopeful that when they do their next set of statistics, we will see that there has been a decrease because the Police has been informed about the process and about the effects that it is having on the community.”

Her comments came following an address at a conference on racial justice by Michelle Alexander an American civil rights lawyer.

Dr Alexander began her address by referring to statistics on the use of 315F in Bermuda which showed that they had soared from 85 in 2008 to more than 17,000 in 2011 and they overwhelming majority of those stopped were black men.

Section 315F, a 2005 amendment, allows the Police to stop and search people in designated locations without probable cause.

“It is my great fear for this beautiful country that you might follow the path of the United States and, gripped by fear in a nation rived by a complicated racial history, that overwhelming punitiveness might clobber what care and compassion and concern you might otherwise feel for the young men who are destroying their own lives and the lives of those in their community.”

She said she hoped that the experience in America might provide some lessons for Bermuda.

“Over the past 40 years we have embarked on a race to incarcerate. We have created a penal system unprecedented in our history,” she said.

“We had about 300,000 people in prisons in the 1950s, we now have 2.5 million. And the overwhelming majority of the increase in incarceration has been poor people of colour primarily black and brown men.

“And the justification for mass incarceration, the justification for this explosion in imprisonment has been violence. Black on black violence.

“And yet the overwhelming majority of those swept into our criminal justice system are arrested for non-violent, relatively minor offences, particularly drug offences the very sorts of crimes that occur with roughly equal frequency in middle class neighbourhoods that are largely ignored, and yet it is young black men who are stopped and searched without cause in extraordinary numbers.”

Once criminalised, a range of civil and human rights are lost including the right to vote, serve on juries, be free of illegal discrimination in employment, education and public benefits, she said.

“The clock has been turned back on racial progress in the United States and it has been done with the excuse of violence but the effect has been to criminalise and lay waste to entire communities communities defined by race and class and the return to a caste like system that we supposedly left behind.”

She said the criminal justice system in the US was being used to label as criminals people of colour and mass incarceration had “emerged as a stunningly comprehensive and well disguised system of racial and social control analogous to Jim Crow”.

Dr Alexander indicated that she had come to her conclusions through an “enormous amount” of research, listening to people with experiences with the justice system and her professional experiences as a civil rights lawyer.

“Our criminal justice system has always been infected with racial bias, but it has never operated on a scale like this today,” she said.

She informed her audience that studies had consistently showed that people of all races use and sell illegal drugs at about the same rates, yet those incarcerated for these crimes are overwhelmingly black.

“There is no way the system we have created today would exist if the chances of young white men going to prison in their lifetime were one-in-three.”

Ms Wilson’s own address which opened the conference entitled Bermuda’s Criminal Justice System: Intent and Impact outlined progress made in Bermuda in combating racism.

But she noted that with one of the world’s highest per capita incarceration rates, “we face the paradox of statistical condemnation”.

“The figure catapults to 73 per 10,000 of the black Bermudian population to be on par with the US national ratio (the world’s highest),” Ms Wilson told her audience of about 120 people.

“In our prisons today over 93 percent of the approximately 266 inmate population is black as compared to blacks being 64 percent of the overall population.”

She, too, mentioned the 315F criminal code amendment and widespread concerns that it allows for racial profiling and harassment of black males.

And while she noted socio-economic environmental risk factors of criminal activity, the Minister of Justice also acknowledged “the presence of historically persistent racial prejudices often in the minds of those entrusted to enforce and uphold the laws; compounded by pervasive negative racial stereotypes among those who break them”.

Still, Ms Wilson declared herself “really overwhelmed” by Dr Alexander’s presentation which came shortly after hers.

“It makes you question your own biases,” she told The Royal Gazette.

“What scares me the most and what I found the most thought-provoking is the fact that there’s parallels. And that if we don’t arrest this now we are going to be in the same shape as America.”

She said she was also now questioning whether the increase in violence was being used as an excuse thereby mirroring the United States.

“It causes you to pause. Are we heading down the same track? There are so many parallels.”

Ms Wilson agreed with the argument that if white people were being incarcerated in the same ratio as blacks, changes would be made to the criminal justice system.

“That would have been the same in Bermuda. I think that’s a fair assessment.”

She cautioned that Police statistics as collected are overstating the extent of stops and searches under section 315, as all stops are included in the count.

“Having said that, it’s important to note that there has been an increase in 315F,” she said.

“And the police have in certain instances abused it because they know that if they do a stop and search under PACE they have to have reasonable cause.”

Anti-racism organisation Citizens Uprooting Racism in Bermuda, which organised the conference, has led opposition to section 315F saying it should be repealed.

The Centre for Justice, a new NGO devoted to the promotion of constitutional and human rights argues that it is unconstitutional.

National Security Minister Wayne Perinchief has argued that the measure is appropriate and effective.

“There are, as best as possible, safeguards,” said Ms Wilson on Saturday, adding that the abuses were being addressed through education within the Bermuda Police Service.

“But these are things that we are implementing because of the upsurge in violence. That’s what’s making me pause. That’s what happened in America and that’s what we’re doing here.”

Citizens Uprooting Racism in Bermuda (CURB) is an Atlantic grantee.