If the feds are serious about police reform, they should stop encouraging bad policing

Last month, the Department of Justice announced that it has opened another investigation of the Memphis Police Department following the brutal killing of Tyre Nichols by Memphis police officers during a traffic stop. These investigations are promising and necessary steps from an administration that has claimed to champion police reform.

But if the federal government is serious about ending the kind of ineffective and ultimately deadly policing that caused Nichols’s death in the first place, it needs to look in the mirror.

For decades, the federal Department of Transportation (DOT) has been pushing local police departments across the country to make more low-level traffic stops like the one that led to Nichols’s death. Despite being an agency tasked with transportation safety, it has been urging local police to make more pretextual stops to fight crime.

The DOT’s National Highway Traffic Safety Administration (NHTSA) has been training “experts” in a program known as Data-Drive Approaches to Crime and Traffic Safety” that teaches police across the country to fight crime through high-volume traffic enforcement. Making a high volume of low-level traffic stops, the program claims, can help police find drug traffickers, violent criminals and even terrorists. Today, about a thousand law enforcement agencies have received training in it.

Other federal law enforcement agencies — most notably the Drug Enforcement Administration — rely on what are known as “whisper stops,” in which a federal agency “whispers” into the ear of local law enforcement about a person of interest, and then local law enforcement finds a pretext to stop or arrest them. Immigration and Customs Enforcement contracts with local police to detain undocumented immigrants, and those police departments — most notably but not solely in Maricopa County, Ariz. — often have used pretextual stops to facilitate encounters.

Even the Biden White House, while urging Congress to “do something” after the killing of Nichols, is itself involved in pushing pretextual policing. The President’s Office on National Drug Control Policy administers a drug interdiction program, known as the High-Intensity Drug Trafficking Areas Program, that likely relies heavily on using traffic enforcement for drug interdiction — yet another example of pretextual policing. Roughly two-thirds of all Americans live in so-called “high-intensity drug trafficking areas.”

Despite broad federal support for pretextual traffic stops, evidence suggests that these encounters — which can be extremely dangerous — do nothing to promote public safety. In fact, there’s evidence to suggest they might increase crime by undermining public trust in law enforcement and diverting resources.

One analysis of 3.4 million traffic stops conducted by California’s 15 largest law enforcement agencies revealed that during those stops, officers confiscated a total of 905 firearms. That’s one confiscation for every 3,700 stops, or a yield rate of less than .03 percent. A statistical analysis conducted by my colleagues at the Policing Project and Stanford’s Computational Policy Lab found that in Nashville, “non-moving violation stops do not appear to have a discernible effect on either long-term or short-term crime rates. And they result in a relatively small number of arrests.” According to the study, just over 2 percent of stops for non-moving violations resulted in an arrest or the recovery of drugs or other contraband.

There’s even evidence that pretextual traffic stops don’t promote traffic safety. When Fayetteville, N.C. re-prioritized its traffic enforcement policies, by cutting back on low-level traffic violations to focus instead on moving violations, the number of traffic crashes and fatalities decreased significantly. So did racial disparities in who was being stopped.

So why do the feds lend their resources and authority to a practice that has been proven ineffective and dangerous? It’s the same driver of so many senseless policing practices: the war on drugs.

In the 1990s, the DOT’s NHTSA largely abandoned its actual mandate to regulate the auto industry and promote vehicular safety innovations, in favor of tough-on-crime politics. Traffic safety became a matter primarily for police to handle, as well as a tool for police to crack down on drug crimes.

There is now a broad consensus that the war on drugs has been a failure and led to our current era of mass incarceration. It is rightfully being undone piece by piece, and pretextual policing should be next to go.

There is a very real traffic safety crisis in this country, and the federal government is wasting resources, pushing outdated responses to a problem relating to poor infrastructure and an unregulated auto industry.

It’s not enough for the Department of Justice to investigate individual police departments that engage in the type of policing that killed Tyre Nichols. If the federal government wants to stop dangerous and reckless policing, it has to stop encouraging exactly this sort of dangerous and reckless policing.

Farhang Heydari is a senior advisor at the Policing Project at NYU School of Law and assistant professor at Vanderbilt Law School.