Racial And Identity Profiling Mandate

Constitution Requires the State to Reimburse Local Governments for Mandated Activities. State law tasks the Commission on State Mandates (Commission) with determining whether new state laws or regulations affecting local governments create state-reimbursable mandates. Typically, the process for determining whether a law or regulation is a state-reimbursable mandate takes several years. State law further requires our office to analyze any new mandates identified by the Commission as a part of our annual analysis of the state budget. In particular, state law directs our office to report on the annual state costs for new mandates and make recommendations to the Legislature as to whether the new mandates should be repealed, funded, suspended, or modified. Below, we discuss the Racial and Identity Profiling mandate, which is a newly identified state mandate funded in the Governor’s 2023-24 budget proposal.

Background

Law Enforcement Prohibited From Racial Profiling. State law prohibits law enforcement from engaging in racial profiling. State law further requires law enforcement to participate in racial profiling-related training prescribed and certified by the Commission on Peace Officer Standards and Training (POST). Such training is required to be completed generally every five years in order to keep current with changing racial and cultural trends.

POST, in turn, is required to develop and distribute guidelines and training on understanding and respecting racial and cultural differences and effective, noncombative ways of carrying out duties in a racially and culturally diverse environment. Such training is also required to include the examination of patterns, practices, and protocols that prevent racial profiling; the negative impact of biases, prejudice, and stereotyping on effective law enforcement; and the specific obligations of law enforcement officers in preventing, reporting, and responding to discriminatory or biased practices by fellow officers.

Law Enforcement Required to Report Certain Data. State law requires the California Department of Justice (DOJ) to report annually to the Governor, various state officials, and members of the public on the state’s criminal statistics. Examples of statutorily required statistics include: the amount and types of criminal offenses, certain demographic characteristics of people who commit crimes, and the number of arrests and clearance rates in California as reported by individual law enforcement agencies. To facilitate this reporting, DOJ is required to collect such data from law enforcement and other agencies, instruct them on how to collect and submit such data, and analyze the submitted data. Accordingly, state law also requires law enforcement agencies—as well as other state and local agencies that interact with crimes or people who are arrested or convicted—to collect and report statistical data when requested by DOJ.

State Law Expanded Prohibition on Racial Profiling and Increased Reporting Requirements. Chapter 466 of 2015 (AB 953, Weber) expanded the prohibition on law enforcement engaging in racial profiling to also prohibit identity profiling. Additionally, Chapter 466 increased law enforcement reporting requirements by requiring each state and local agency that employs law enforcement officers report annually to DOJ on all stops conducted by its officers for the preceding calendar year. Statutorily specific metrics are required to be reported for each stop—including the time, date, and location of the stop; the reason for the stop; the result of the stop (such as whether the officer asked for consent to search the stopped person); and the perceived race or ethnicity, gender, and approximate age of the person stopped based on the observation of the officer conducting the stop. Such reporting was to be implemented in waves between 2019 and 2023. Specifically, state law required that such data first be reported by April 2019 from agencies employing 1,000 or more officers (“Wave 1”), by April 2020 from agencies employing 667 to 1,000 officers (“Wave 2”), by April 2022 from agencies employing 334 to 667 officers (“Wave 3”), and by April 2023 from agencies employing less than 334 officers. Chapter 466 also increased annual DOJ reporting requirements—such as by requiring the reporting of citizen complaints alleging racial or identity profiling disaggregated by the specific type of profiling alleged as well as how such complaints were resolved.

Moreover, Chapter 466 established the state Racial and Identity Profiling Advisory (RIPA) Board—housed within and staffed by DOJ—to (1) analyze the data collected and reported; (2) analyze law enforcement racial and identity profiling related training; (3) review and analyze racial and identity profiling policies and practices across the state; and (4) conduct or consult evidence-based research on intentional and implicit biases and law enforcement stop, search, and seizure tactics. The RIPA Board is also required to issue an annual report providing its analysis, detailed findings on the past and current status of racial and identity profiling, and recommendations for eliminating racial and identity profiling. Finally, the RIPA Board is required to advise DOJ in the collection of data to ensure uniformity, consult with POST on training curriculum, and hold at least three public meetings to discuss racial and identity profiling and potential reforms to prevent such profiling.

Commission Determined Legislation Created a State-Reimbursable Mandate. The Commission found that Chapter 466 requirements—as well as implementing regulations—related to the collection and reporting of stop data created a state-reimbursable mandate. Specifically, the Commission found that this requirement imposed new state-mandated activities and costs on county and city government agencies employing law enforcement officers for police protection services—but not K-12 school districts or community college districts that employ law enforcement. The Commission found that these new activities and costs resulted from agencies needing to (1) identify the peace officers required to report stops and maintain a system to match individual officers to an identification number, (2) collect the stop data, (3) electronically submit data to DOJ and retain stop data, (4) work with DOJ to audit and validate the data after submission and correct any errors, and (5) ensure that information exempt from disclosure is not submitted to DOJ. However, the Commission found that certain other changes made by Chapter 466 did not constitute a state-reimbursable mandate—specifically, the prohibition of identity profiling, the increased annual reporting required of DOJ which requires agencies collect and report certain data, and certain requirements on the RIPA Board that could impact agencies—as they did not impose any activities on local governments.

The Commission estimates $25.5 million in initial costs of claims from local governments related to the mandate between 2017-18 through 2019-20. The Commission further estimates costs of $10.8 million to $11.8 million in 2020-21, $12.1 million to $13.2 million in 2021-22, and $15.2 million to $16.5 million in 2022-23. Annual costs after 2022-23 are estimated to remain at $16.5 million. This is because while one-time costs (such as to modify local database systems to capture the data) will no longer be incurred, more law enforcement departments will be required to report (as a result of the final wave of implementation).

Governor’s Budget

Governor Funds Mandate Reimbursement Cost. The Governor’s 2023-24 budget proposes $50.5 million General Fund to reimburse local governments for the costs they incurred to comply with the law enforcement officer stop data reporting requirements while they were under review by the Commission. This amount consists of $25.5 million for the initial claiming period between 2017-18 through 2019-20, $11.8 million for 2020-21, and $13.2 million for 2021-22. The Governor’s budget also includes $16.5 million ongoing General Fund to support such costs in the future. Funding the mandate would make local compliance with the above requirements mandatory in 2023-24 and the state responsible for the costs incurred by local governments.

LAO Comments

Full-Year Costs Observed in 2022-23. As discussed above, state law authorized agencies to meet the required reporting requirements in waves—with agencies employing more officers reporting first. The final wave of agencies—Wave 4—are required to submit their first report by April 2023. This report would capture all stops conducted in 2022. As such, 2022-23 will be the first year in which the full-year costs of all agencies complying with these requirements will be observed.

Future Fiscal Effects Difficult to Estimate. The annual costs related to this mandate are difficult to estimate. The Commission calculated its estimates based on approximately 15 of the largest law enforcement agencies which comprised Waves 1 and 2. It is unclear the extent to which their costs are representative of all local agencies throughout the state—specifically, the hundreds of agencies in Waves 3 and 4. For example, large agencies can benefit from economies-of-scale to make one-time investments in database systems that could help automate or validate data—thereby reducing the ongoing costs of collecting such data. In contrast, smaller agencies may rely more heavily on manual or less efficient processes which could result in higher costs for such data.

Additionally, future ongoing workload and costs will vary by local government depending on various factors—such as total number of officers employed by each agency, the number of stops conducted, and data collection and other technology systems being used to collect and report the data. For example, the number of stops may fluctuate based on a local policing decisions or other decision-making factors that are difficult to predict. Costs could also decrease over time to the extent that officers and agencies are more comfortable and accurate in their reporting or if new technology or databases become available to more cost-effectively capture or process the data.

Evaluation From Data Has Already Benefited State. The state has already benefited from the collection of the required stop data. Without the collection of data, the RIPA Board’s work would be significantly more difficult as it would lack the necessary data to assess the current status of racial and identity profiling in law enforcement practices as well as to make recommendations on training and other practices to eliminate racial and identity profiling. Each annual RIPA report has provided robust data analysis and has generated a number of recommendations and best practices. For example, the 2023 RIPA report offers numerous recommendations covering various topics including: pretextual stops, youth contacts with law enforcement, accountability over policing practices, service calls and bias by proxy, civilian complaints, and POST trainings.

Additionally, there has been significant public interest and analysis of such data. Since 2018, DOJ has received requests from various entities for data, including state and local agencies, media, academics and researchers, advocacy groups, and private individuals. The public has also accessed the data by downloading it from the DOJ website. While the full extent of how such data is used is unclear, there are clear examples where it has been used to generate research to further public discourse on racial and identity profiling. For example, the Public Policy Institute of California published reports on racial disparities in law enforcement stops in October 2021 and on racial disparities in traffic stops in October 2022—both of which used this data.

Recommendation

Fund Mandate. The intent of Chapter 466 was to help identify and address racial and identity profiling in law enforcement stops—which is prohibited by state law. Such practices can lead to inequitable interactions with the criminal justice system. The stop data required to be reported by Chapter 466 has already generated reports that identify racial disparities in stops as well as offer various recommendations for legislative consideration. The availability of more data as all agencies employing law enforcement officers report data will likely provide additional insight—particularly in examining trends across the state. The Commission has found that requiring county and city government agencies employing law enforcement officers for police protection services to report such data constitutes a reimbursable mandate. Given the state’s interest in ensuring that law enforcement officers do not engage in racial and identity profiling and addressing it when they do, we recommend funding this mandate.