Guided by Race: An Ethical and Policy Analysis of Racial Profiling in Law Enforcement Decisionmaking Brandon del Pozo



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Guided by Race: An Ethical and Policy Analysis of Racial Profiling in Law Enforcement Decisionmaking

Brandon del Pozo*

Introduction



State Trooper David Riggins1 has been watching interstate traffic from his concealed position for twenty minutes. Two thirds of the cars he tracks with his radar are breaking the speed limit, but be hasn’t pulled them over. Instead, he waits for the right “type” of car to drive by. In the next minute he sees one: a late model SUV being driven by a young black man. Indeed, the SUV is speeding. He takes off after it, hoping to get the driver to consent to a search and to find contraband.
Trooper Riggins doesn’t merely hunt for speeders, he uses speeding to hunt for drugs and guns. He uses observed violations to target a certain group of people: likely drug dealers.2 For this reason, he doesn’t waste the time in his tour pulling over little old ladies with a lead foot, or white men in family sedans. He prefers the rental cars and the flashy, high-end imports driven by the black men who, in his experience, are more likely to be couriers of illegal narcotics and firearms. He has built up a 25% success rate3 thus far, which he sees as a clear vindication of his means: fewer than one percent of the people on the interstate ferry contraband, but he has filtered out a sub-category of driver which is over 25 times as likely to be engaged in such crimes.
Some have asserted that he is intruding on the lives of fifteen good people for every five he arrests, and that his success rate is higher than most. He points out to them that every single person he pulls over is violating a traffic law, so he has the right to stop them in the first place. If things check out and he does not suspect drugs, he is courteous and often issues only a warning. When he finds a big cache he feels like he’s doing his part to help poor, crime-ridden inner cities for which the drugs were destined: he is making it incrementally harder for dealers to addict the citizens around them. He is helping to spread the word that being a drug courier is a risky proposition and hopes it gives people pause when they consider doing it.
Trooper Riggins doesn’t know precisely why a higher percent of black men run drugs than others, but supposes it has to do with poverty and lack of opportunity. All he knows is that if he was forced to stop black drivers only in rough proportion to their representation in the population of interstate travelers, he would take fewer drugs and guns off the street. The drugs would end up in the veins of addicts, and the guns in the hands of violent criminals. He thinks he is doing good work.
Few people would dispute the fact that the fictional trooper above, working a nondescript highway somewhere between New York and Florida, practices racial profiling in the course of his duties. What is not as clear, however, are his ethical, moral and legal rights to do so. In the last three years, the practice of incorporating race as a factor in determining who the police interact with has come under strenuous criticism, if most often from expected quarters. The American Civil Liberties Union released a report, ‘Driving While Black’, which condemned racial profiling as a pervasive practice which systematically denies minorities of their civil rights.4 New Jersey’s Chief of Troopers, Carl Williams, was fired in 1999 by the state governor because he openly expressed his belief in a link between race and highway drug trafficking.5
His termination occurred in the context of the media’s attack on the practice of racial profiling: “the current uproar… has spotlighted one clearly abusive practice that moderates, conservatives, and, indeed, police chiefs should join liberals in assailing: racial profiling”.6 To a great extent, they have. A writer at The Nation suggested that
it’s no mean feat to find an issue on which Bill Clinton, the Rev. Al Sharpton, Attorney General Janet Reno, many of the nation’s police chiefs and NAACP president Kweisi Mfume agree, but at a Washington conference in June, they all expressed that racial profiling… needs to end.7
It is possible that the nation’s police chiefs are afraid not to agree for fear of meeting the same fate as Chief Williams.8 Racism—broadly defined as considering the race of a person as a factor in determining their rights and treatment9—is certainly an immoral, unethical and largely illegal practice. It is easy to then conclude that any practice which includes race in its decision-making process must fall under the umbrella of racism and is similarly unjustified.
Former President William J Clinton relied on such an argument to ground a Presidential directive ordering an investigation into the extent to which federal agencies practice racial profiling. He called the practice “morally indefensible” and “in fact the opposite of good police work where actions are based on hard facts, not stereotypes”.10 The president made this statement despite extremely limited personal experience in police work, and also despite an extensive body of Supreme Court case law to the contrary. Cases from Terry v Ohio11 through more recent ones such as Whren v U.S..12 recognize that certain forms of police work which rely on grounded suspicion in the absence of hard facts are necessary, vital to effective policing, and constitutionally protected.
This suggests that such brisk conclusions are unwarranted and smack of folly. Instead, the issue ought to be discussed more carefully and with a good-faith effort to understand why it has often been put into practice by people who strenuously maintain that they are not racists and are in fact acting in the best interests of justice, among them some minority police officers.13 There are some who have taken this charge seriously. Even while eventually concluding that racial profiling is not a sound practice, Harvard Law School professor Randall Kennedy acknowledges that to some police officers, “racial profiling is a sensible, statistically-based tool that enables [the police] to focus their energies efficiently for the purpose of providing protection against crime to law-abiding folk.”

Exploring a contradiction in stance: affirmative action

The case that all race-informed decision-making models should not be considered immoral and racist without careful consideration is exemplified by the widespread support—indeed by many of the same parties who condemn racial profiling—of the practice of affirmative action in the workplace and at universities. Off the cuff, some of its defenders would suggest that since affirmative action renders a benefit to minorities and is supposed to be rectificatory in nature, it merits certain dispensations. Meanwhile, they would suggest, racial profiling does not confer a benefit to minorities and exacerbates the racial tensions that affirmative action itself supposedly fights, so it is not akin to affirmative action and in a larger sense unjustified in its practice.


The most evident hazard in such a consequentialist argument is the presumption that race can be a factor in the treatment of people merely if the results are beneficial to the race in question. By extension this would reduce arguments about profiling into statistical ones bent on demonstrating its relative public safety benefits for different races, especially minority ones. While not relying primarily on such an argument, this paper will suggest later that racial profiling, despite any negative implications, has a very compelling statistical—and therefore consequentialist—foundation.
Still, defenders of affirmative action continue to rely on this form of reasoning. Some loosely maintain that using skin-color as a stand-in for a lack of traditional opportunity, they are able to redistribute the benefits of employment and education among those who have systematically lacked the opportunity—through no fault of their own—to receive those benefits. However, racial profiling uses also skin-color; not as a stand-in for lack of opportunity but for one of its results: a propensity to commit crime. It then redistributes police efforts along those lines to enhance the benefits of public safety among the larger class of law-abiding people of all races.
In both cases, the fit is rough. Affirmative action asks its recipients to acknowledge that despite their best efforts they are second-class citizens who are not in a position to succeed as easily as others. Racial profiling asks its subjects to acknowledge that they are part of a class of citizens who are more likely to commit certain crimes. Like most generalizations, both models work in the aggregate but do not offer insight at the individual level. In any event, individual citizens have both a pre-existing right not to be stopped by the police for inadequate reasons as well as a pre-existing right to be judged as independent, fully-enfranchised and capable members of society in a competition of merit with others. In both cases, the reasons for acting otherwise should be compelling, consequentialist or otherwise.
The larger issue here is that because they are born of such similar logic, racial profiling cannot be rejected out-of-hand by individuals who laud affirmative action. A December 18, 2000 New Yorker article by Nicholas Lemann serves to frame the point. At present, the University of Michigan is the subject of two lawsuits brought forth by white students who were rejected by the institution. Their claim is that they were rejected to make room for students with demonstrably poorer academic credentials who were accepted solely because of their race.
The plaintiffs were able to discover documents which provided formulas for acceptance and rejection based on race. One plainly stated that whites would be rejected from a selective pre-medical program if their SAT’s were below 1320, but minorities would not face categorical rejection until their scores fell below 1170. Another formula for undergraduate admissions provided for the automatic acceptance of any minority with a GPA of 3.5 or better and an SAT score above 1200. At the law school, the acceptance rate for blacks with undergraduate GPA’s between 3.25 and 3.49 with LSAT’s between 156 and 158 was 100%; for whites in the same range the acceptance rate was less than two percent.14
It is clear then that at least at this university, race plays a prominent role in the decision-making process of admission and the concurrent distribution of the benefit of college acceptance. Ceteris paribus, minorities seem to consistently beat out whites for admission solely because of the colour of their skin, as proscribed by the systematic process used by the admissions staff.
When asked to explain this practice, the university’s president at the time, Lee C. Bollinger (now the president of Columbia University), stated that affirmative action “helps students to understand the full complexity of life—to make the emphatic leap… It’s exciting to be in an environment where people are different from you.” In sum, he contends that minorities are different from whites in some substantive way, and that this difference in practice can be represented in proxy by skin color. It is not clear that a black from Beverly Hills is more different from an affluent white than a poor white from the isolated foothills of western Kentucky. Yet the university, and many others like it, are content to broad categorizations of skin color to be a stand-in for cultural difference in the essential practice of admitting students to their schools.
It will be argued that police officers who use racial profiling actually render much more subtle and complex analyses in their decisionmaking than the law school of the University of Michigan does in its admissions process. Yet few consider if a black person feels belittled for being invited to attend a university because its administration needs to expose whites to cultural differences and to prompt “emphatic leaps,” and not because she was among the best-qualified to engage in a course of study. This lack of analysis is likely because unlike police racial profiling, affirmative action yields the benefit of an academic degree instead of the temporary seizure of a person and the threat of incarceration.
It is not likely that the people who seek to stamp out the race-based decision-making of racial profiling, if successful, will in stride turn their energies to ending the race-based decision-making of affirmative action as the logical extension of their work. This may be due to many factors. It might be because of the belief that while racial generalizations about cultural diversity have firm empirical bases, there are no such bases viz criminality. It might be because they would choose to ignore such processes if they are rendering benefits for minorities (which implies that racial profiling does not). Or it might be because of an inconsistency in their reasoning which stems from political considerations. Regardless of the rationale, the point remains that it is exceedingly difficult to rest the condemnation of racial profiling solely on the fact that it employs race in its calculations and is therefore akin to racism itself. Not only do other, more revered processes do the same, but it is simply not the case the definition of racism casts so wide a net as to include, ipso facto, any act informed by race at its inception.

The nature of crime investigation

There is a segment of police work that involves police-community relations and devising creative approaches to managing low-level disorder such as rowdy youths and public consumption of alcohol. Another includes civil mediation such as resolving interpersonal disputes or documenting the facts surrounding automobile accidents. These facets of policing will not be addressed here. Instead, the topic of discussion requires a closer look at police work as it is focused against crime, more specifically the perpetration of felonies, misdemeanours and to a more limited extent, traffic violations.


In this regard, there are three methods most generally at the disposal of a patrol force. The first tactic is a response to crimes in progress or in the past at the behest of victims or other complainants. Sometimes police officers stumble upon these crimes before they are alerted to them by others, but in all cases the response is basically the same: to ascertain who is committing or has just committed a crime and to apprehend that person. In cases where the police arrive at the scene after the perpetrators have fled, they will most often engage in a search for the person. The search is directed based on information about the criminal’s physical characteristics and direction and method of flight as supplied by witnesses. The “canvass” consists of no more than stopping the group of people who match the given description15 to see if any in that group can be identified as the person in question, or if they sport evidence of the offence.
Often, industrious police officers will seek to place themselves in situations where the chances of stumbling upon a crime in progress are maximized or the response time to the scene of a complainant-originated report is minimized. These measures might include heightened alertness at certain times of day and spending more time in neighbourhoods with higher complainant-reported crime rates. In any case, the issue of arrest is still predicated upon a complainant’s assertion that a person has committed a course of action against them which qualifies as a crime; whether the police notice this fact first or are alerted to it, the route of their investigation is determined by the statements of victims and witnesses.
The second tactic is the proactive apprehension of people committing crimes for whom no civilian complainant is readily apparent, and the apprehension of people who are about to commit a crime. In these cases, the police must make their determinations based on facts aside from stated allegations by others. These include cases where the state is the only complainant, such as all traffic infractions and crimes such as prostitution. They also include cases where the state is the only complainant but there is a strong presumption that the crime in question is a prelude to future complainant-driven crimes: unlicensed firearms possession is unlawful under the presumption that it is a prelude to armed robbery or felonious assault. A police radio scanner, an armoured vest, and lock-picking tools might be legal by themselves, but when possessed all at once at night near a commercial strip, they strongly indicate an impending burglary. Finally, some proactive apprehensions are of criminals for whom the suitable complainant is still to be located. This includes apprehending the driver of a stolen car before its owner has discovered it stolen, or arresting a burglar before the resident of the building in question gets home.
The third measure is deterrence by mere presence, in which the police prevent would-be criminals from acting because the spectre of capture and incarceration overshadows the benefits of committing a crime. This tactic is illustrated by the fact that it is extremely rare that sane people knowingly commit crimes in the presence of uniformed officers, and that highway patrolmen must usually conceal themselves to observe people speeding. Deterrence is akin to “winning without fighting” in the sense that criminals shy away from their intended actions because the probability of engagement by the police is so high, and the odds are so skewed in favour of the law.
As the tactics outlined move from reacting to the statements of crime victims through measures which are predictive in nature such as proactive enforcement and deterrence, the police’s reliance on conjecture (“that car might be stolen; those guys look like they’re scoping out a store for a robbery”) versus hard, situational facts (“I am looking for three men in red jackets who fled northbound in a black Honda two minutes ago”) necessarily increases. Despite less reliance on supplied facts, citizens depend on the police to take these proactive steps. Lacking such initiative, they would make no arrests in state-complainant cases where perpetrators take reasonable steps to hide their illegal actions (such as concealing illegal weapons). The police would find themselves only encountering criminals either through dumb-luck chance encounters or after the state-driven crime has yielded a complainant-driven one, and they would begin their investigation only after an innocent person has been harmed and the trail of the perpetrator has started to cool.
It can be presumed that good police practices are ones which expose as few citizens as possible to criminal acts resulting in bodily harm and the loss of property while respecting human rights and freedoms. What follows is that the ideal state of law enforcement is one in which most crimes are deterred, and those which are not are intercepted before an innocent person has been harmed by a criminal. But since the police cannot be everywhere at once, where should they be to maximize this deterrence? In what enclaves should they loiter to minimize response time to crimes? If certain groups are much more likely to commit crime, should they preemptively keep a closer watch on them? This would suggest—contrary to President Clinton’s assertions—that good police work is based minimally on hard situational facts, but instead more often on presumptions, predictions, intuition, and inference which officers then parlay into levels of suspicion, action, and only towards the end, hard facts and evidence.

A sufficiency test for police policy

As suggested, police policy must respect people’s rights and freedoms.16 It would be very effective to protect all citizens from crime by implementing widespread random searches, or allowing for arrest and interrogation on less than probable cause. Yet those policies infringe on the rights of innocent citizens, and the loss of trust and attendant fear of the police among the innocent would greatly outweigh the benefits of reduced crime17 if not be catastrophic for democratic government.


Beyond this, not every end in policing is a clear moral imperative. For example, documenting motor vehicle accidents and verifying pawn broker licenses are both regular functions of the police officer, but they are not morally required goals of policework. At the same time, preventing citizens from being robbed, raped or killed are the clear moral goals of an organization acting as the government’s sole or primary agent in this regard. In this way, many goals of police policies are themselves moral ends.
This yields one of the three facets of a test for otherwise effective police policies. The first task would be to ensure that the policy is a moral end, and if it is not, that it does not interfere with what are ostensibly moral ends. The implication is that, for example, policies which address crimes against persons would take precedence over those which address property, and still over those which concern civil or administrative functions of the state. Thus, police agencies ought to carefully consider the moral ends which fall under the scope of their organization when constructing their plans and policies.
The second task is to determine if the practice being formulated, although producing a desired effect, is still a moral one in that it respects the rights and freedoms mentioned above. Even if the goal of the policy is moral, such as to prevent rape, a program of warrantless searches and torture would not be a morally permissible method of preventing such a crime. Involved in this formulation is the calculus of civil rights, occasions when such rights may be curtailed, and issues of exceptions and due process.
The third facet develops from the fact that while protecting citizens from crime might be a generally moral end of the police, it is not a procedure in and of itself. To this end, the police must still enact various specific crime reduction policies. Some will be more effective than others, but as long as they are good-faith efforts to achieve these moral ends, none of them have more of an intrinsic moral value than other variations of the policy. Unless, that is, the policies are formulated in a manner that causes the agency to neglect certain other moral duties. For example, an agency might decide that since thousands of people shoplift each year, it is one of the most frequent and troublesome crimes in their jurisdiction. The department might commit most of its resources to arresting these violators, even as less frequent violent crimes such as rape and murder occur and receive almost no attention. This is type of negligence is serious and serves to give the policy an added negative moral dimension. Another type of negligence of a similar nature is financial. If a police department hell-bent on catching murderers spends all if its budget doing so while becoming too cash-poor to provide the remainder of its service obligations, then it is negligent. The same idea applies to a government that lavishly funds police efforts while ignoring other public services necessary for a safe and healthy community.
As long as a department’s goals are moral and properly ordered, and barring these types of negligence, policies may be enacted, repealed or changed to meet the sensibilities and expectations of the citizens they serve. One policy might concentrate the police in high-crime areas, but the next week scatter them about. Another might combat domestic violence as a means to lowering the murder rate, the next one might fight street crime to the same end. Policies are political tools enacted by a government to fulfill its goals. An implication of this adaptability is that if an otherwise good policy is divergent from the expectations of the citizenry, causing dismay and disapproval, then the policy may be changed or discarded so long as the effect of doing so does not border on negligence. Less charitably, if the policy does not fulfill the goals of the government—no matter whether the satisfaction of citizens is a calculation in them or not—then it may be readily changed or modified as the government sees fit. It is simply reality that police policy is written under the umbrella of larger political considerations. While law enforcement agents would ostensibly like to incorporate the measures that most effectively reduce the amount of crime in a city and the number of offenders walking its streets, the overseeing politicians must take into account other considerations. These include matters of budget, but they also include public sentiment. If the public prefers certain types of enforcement over others, and the end result is less-efficient crime fighting, greater public approval, and a net difference in result that is not immoral in its negligence, then one should not be surprised if the police department in question receives political guidance to that effect.
It will be presumed that the ends of policing discussed in context with racial profiling are moral ends. Indeed, they typically are: to arrest those dealing dangerous drugs, to avert robberies and murders, to apprehend those carrying illegal weapons intended for use in crimes, etc. The merit of the argument that racial profiling is actually meant to support a racist government’s oppression is not considered here but is addressed later as a red herring. This allows for the omission of the first test of police policies in the assumption that their ends will be moral ones that are properly ordered. To succinctly restate the remaining two elements of the test, it is sufficient for police policies to meet two criteria:


  1. The policy must try to meet its stated goal without violating the moral rights and freedoms of citizens in its practice.

  2. The policy must not in and of itself take on an added negative moral significance by neglecting certain other moral duties.

If these criteria have been met, then the policy may be constructed, reconstructed or adapted inside these parameters for the widest range of reasons, including those of political and economic expedience.



Profiling as a police practice

Having constructed a sufficiency test for the soundness of a given policy, we will set it aside for a time and in the interim consider the nature of profiling, and then of racial profiling. Profiling can be defined as a broad method of targeting police resources based on where they are most likely to encounter crime.18


Profiling can be executed geographically and against people.19 Certain areas have much higher crimes rates, and through the use of statistical analysis, it is possible to determine to within a few city blocks where crimes are occurring with the most frequency. For example, a feud between youth gangs may yield a higher frequency of felony assaults at the border of their perceived turfs. A certain senior-citizen complex might suffer more mailbox break-ins as social security checks arrive each month. Thieves might evince a predilection for a certain industrial neighborhood for dumping and stripping stolen cars. In all three of these cases, the police would be inefficient if not foolhardy not to concentrate their resources at certain places and times to combat such prevailing trends. What such crime-mapping does is speculate about the future based on past facts. It speculates that certain past geographic trends will continue and that directed efforts informed by these trends will yield more arrests than patrolling which ignores these facts. The public does not seem to mind these assumptions and in fact often calls for an increased police presence in certain areas in the wake of crime trends.
This speculation can extend to people. If the youth gang which complainants say is responsible for numerous recent shootings sports purple bandannas, the police will keep a closer watch on youths with purple bandannas. If packs of youths frequently descend upon high-end department stores in midtown Manhattan to commit larcenies en-masse, then the police would do to discreetly tail such throngs.
What profiling generally does, then, is collect categorical data for use in speculation about the future. Often the data can be contradictory, as with the profiles presented by the US Drug Enforcement Agency in the fight against drug smuggling. They include “acting too calm… acting too nervous… traveling alone… traveling with a companion…”.20 This suggests that some instances of profiling are more successful than others and that some nets are cast more widely than others, but in each case the profile is presumably drawn with the aim of singling out sub-groups more likely to be engaged in crime than a random person from the population at large. The sub groups may be very large ones such as the DEA list above, but as long as they are smaller than the relevant population, they will increase the efficiency of enforcement efforts.21
This can be rephrased in more precise language: a profile identifies categorical data which correlate with criminal activity. For these correlations to be of use, they must not be due to chance. If they are not, then the police have constructed an “instrumentally rational” enforcement tool.22
It might be possible that the correlation is spurious, but that does not detract from a profile’s usefulness, and therefore instrumental rationality. Applbaum explains that when “[such] Bayesian decision analysis expresses a degree of certainty about some event occurring, it makes no statistical commitment to any one of the many underlying causal mechanisms compatible with the statistical inference made” (emphasis added). If the youth gang discussed sports the purple bandanna not as a conscious display of their colors but because they need a bandage handy in case of injury and purple bandannas happen to be the most cost-efficient solution at present, does this diminish an officer’s suspicion of people with these cloths? No, but it does suggest that profiles might be periodically reevaluated to test their validity and timeliness. Perhaps there will be a sale on orange bandannas the next week.
With this in mind, certain profiles have already been written and have stood the test of time. Men are more likely to commit violent crime than women. Men from the ages of 14 to 30 are more likely to do so than children, the middle-aged and the elderly; single men commit more crime than married men.23 A survey of precinct-by-precinct crime statistics in New York City suggests people in poor neighbourhoods are subject to more violent crime than those in exclusive, wealthy ones.24 More violent crimes are committed between the hours of dusk and two in the morning than at all other times. The population which has committed violent crimes in the past is more likely to commit them again than the population at large.
This yields numerous categorical variables suitable for profiling. They include sex, manner of dress, age group, criminal history, education, marital status, level of education, location, and time of day. Some of these factors are readily apparent, others only known of the usual suspects, and others only known under bizarre circumstances. These are then complemented with cues such as mannerisms, traditional indicia of criminal activity (such as “casing a joint”) garnered through the practice of “social decoding”.25 The result is a set of statistical stereotypes for use in streamlining proactive policework. As with all stereotypes, their use is limited and exceptions will abound, but there is enough of a basis in truth to warrant their use.
Moreover, when any number of disparate statistical probabilities which describe the categorical attributes of the same dependent variable (in this case crime) come into confluence at a certain point in time, the attendant likelihood of a positive hit increases accordingly. A sixteen-year-old male with a known arrest record for assault bearing a gang bandanna and walking the street in a poor, violence-prone neighbourhood at midnight bears more watching than the elderly female who crosses his path, or the middle-aged man who walks several paces behind him: several factors correlated to crime have come together at that moment which are together much more suggestive than any smaller group of them standing alone. This suggests that “among the set of search strategies with positive net benefits, some are better than others… If a refined search strategy is available, not to use it is inefficient”.26
Now it is entirely possible that the man behind him is a mugger who is actually using the unwitting youth to run interference. Even then, all is not lost: if he strikes, the complainant will disseminate his description and the canvass will focus on people who look like him. If enough people like him commit muggings viz youths, the profile will shift.
As an aside, it is also a practice to profile victims. It is instrumentally rational for plainclothes officers to trail a drunk, disoriented man stumbling home at 3am sporting an expensive watch and gold chain. They might also do well to follow an old woman home from the bank at dusk as she dangles her purse distractedly. In each case, the officers have profiled the person involved as more likely to be a crime victim than a member of the population at large. These presumptions have been formulated and disseminated by police officers who have informally collected data from numerous calls for assistance from drunk people who have been robbed at night and older women who have had their purses snatched while walking home from the bank.
The instances outlined thus far involve measures such as positioning officers in certain places as certain times, or keeping certain people under more careful observation than the average citizen. As presented, the measures are only mildly controversial except in that if they are not carefully formulated they might not be of more use than patrolling in a random manner. However, as will be discussed later, these measures might also include using the profile to formulate a level of suspicion of a person which a police officer then uses to stop and possibly frisk them. In this case, the police officer is conducting a proactive investigation with the hope of finding the evidence of a crime.27 Profiling might also be used to pick out who to apprehend from a known set of violators (such as all those who are speeding down a highway) when it is impossible to apprehend everyone.28 The expectation is that profiling what type of speeder is also more likely than average to be a criminal will not only deter speeding but also parlay itself into the apprehension of such criminals,29 to include the drug dealers mentioned in the introduction.
The emergent point about profiling is that it is a practice of data collection and analysis with an eye toward two things. This first is providing the criteria for separating a certain sub-population from a larger one which has already committed a minor violation and are legally eligible to be stopped when various factors prevent stopping them all. The second is to provide the focus for police enforcement efforts in the formulation of a level of suspicion legally adequate for police action. In these cases the conduct of the police seems more controversial than before, though not because of profiling per se but instead because of the level of intrusiveness it is used to justify.

Racial Profiling

The use of race in profiling has been conspicuously absent up to this point, but not by accident. In an attempt to establish the rationale for profiling in general, an early introduction of race would only serve to prematurely confuse the issue by drawing too much of the focus away from necessary theory. The groundwork having been laid, racial profiling merely expands the categorical data collected for use in speculation about the future to include data concerning race.


In addition to supposing that certain types of dress, attitude, location, and other factors such as gender and age have a non-chance relationship with crime, the basis of racial profiling is that race itself has the same type of non-chance relationship. Thus, for racial profiling to be an instrumentally rational tool, it must have an empirical basis. Once this is established, it must also meet the requirements proposed earlier for a sound policy. It must not be inherently immoral or unjust. Secondly, if its application as policy does not assume a moral weight due to negligence of certain moral duties, then it should also be a policy which meets with the desires, expectations and sensibilities of the public it serves.
If racial profiling were to somehow be proven as empirically true, morally just and a politically sound policy from the outset, then its usefulness could not be underestimated. Race is an incontrovertible piece of data not subject to easy change or manipulation. Age is hard to estimate, the fashion trends of street criminals change, and it takes a very keen eye to be adept at social decoding.30 A person’s race is most often clear and hard to disguise. As long as race’s relationship to crime could be maintained, it would be a readily available for use in calculations.


The empirical basis of racial profiling



There is strong and compelling evidence to support a relationship between race and crime that is not due to chance. As Randall Kennedy maintains, “Statistics abundantly confirm that African Americans—and particularly young black men—commit a dramatically disproportionate share of street crime in the United States”. This assertion is based on several sources, but the ultimate foundation can be found in statistics compiled by the Department of Justice. These include the National Crime Victimization Survey (NCVS) and the FBI’s annual Uniform Crime Reports (UCR).
Certain authors maintain that the use of arrest data is unreliable because racist officers will look to arrest fewer whites and more minorities, then point to arrest data as proof that minorities commit more crimes than whites and use this as a reason to go on patrol and target more minorities.31 While this criticism is most tenable in the discussion of drug offences and other crimes where the state is the complainant, it stands on shaky ground in crimes with victims. In such cases, the police will make an arrest based on descriptions provided by the victim and ultimately on her identification of a suspect. To say that the police seek to arrest minorities when victims have instead described their perpetrators as white is not only counter-intuitive but involves widespread collusion by crime victims, a considerable number of whom are minorities themselves.32
It is unfortunate that many of the arguments in support of the empirical link between race and crime published in peer-reviewed journals have been authored by the white separatist Jared Taylor.33 Still, he uses data based on government-supplied statistics and subjects them to straightforward analysis to present relative rates of offence. While it is easy to find his conclusions and policy recommendations fatally flawed and extreme, it is useful to consider the data he presents.
Based on NCVS data, individual blacks are 50 times more likely to commit crimes against whites than vice-versa; groups of blacks are up to 250 times as likely to do so.34 In fact, NCVS data suggests that blacks are responsible for 90% of all violent interracial crime.35 What this implies is that in racially-mixed situations, blacks account for the vast majority of violent, interracial crime. A further implication is that if the police are patrolling such areas populated by a mix of white and black citizens, the sub-group of blacks among them contains significantly more criminals.
Taylor also notes that the data are skewed by the misleading characterization of Hispanics as white in federal crime reports. If a person of Mexican or Colombian descent, for example, is arrested for a robbery, it is recorded as a white person committing the crime. Hispanics may very well be closer to white than black in their racial makeup. Still, categorizing them as white is the bizarre exception to a general rule of considering them as a separate racial/ethnic group for the purposes of government data collection, and perhaps more importantly in the eyes of racists who discriminate against them. In fact, the only time Hispanics get their own category in federal crime statistics is not when they perpetrate a crime but instead when they are the victim of a hate crime.36 The net effect is representing the population of whites as being larger than it actually is when comparing rates of offense based on race.
The main flaw with Taylor and Whitney’s methodology is its focus on interracial crime. It thereby neglects the analysis of crimes committed intraracially, which are just as important to solve, deal with, and account for as interracial ones. The rate at which blacks commit crimes among themselves can yield useful data about relative offence rates and the degree to which chance might explain racial disparities.
To this end, this author conducted three Chi-Square tests for fit. The tests used the categorical variables of race and type of offence viz the total number of arrests of blacks and whites for those offences in 1997. The first crime chosen was murder, for several reasons. Murder is the crime least likely to be downplayed by the police. There are great efforts made to close as many murder cases as possible regardless of the race of victims or offenders. Also, it is as extremely difficult to doctor murder statistics as it is for the police to remove a dead body from a street or hallway and act as if nothing happened despite the inquiries of aggrieved family and friends.37
The second offence chosen was the aggregate category of arrests for violent felony crimes. These include robbery, aggravated assault, rape, and of course murder. This choice was made under the presumption that such crimes provide a more compelling case for proactive police measures such as profiling than property crimes, and because, in the case of all violent crimes, a witness or complainant must describe and identify a suspect prior to arrest, minimizing the potential for police bias.
The third offence chosen was arrest for illegal weapons possession, in light of the criticism that the NYPD has encountered for disproportionately targeting minorities for frisks in an effort to find illegal firearms. One criticism of this statistic, as mentioned earlier, is that one can find things only where one looks for them: “If blacks are stopped at rates that are shockingly disproportionate to any other group in the population… then it should not be a surprise that they are subsequently arrested, prosecuted and convicted more frequently than whites”.38 Still, a certain amount of these arrests are incidental to the investigation of other crimes such as disputes and assaults, and enforcement efforts searching for weapons are often driven by a neighborhood’s reported rate of violent crime.
It was assumed that the black population in the United States is approximately 12 percent.39 It was also assumed that whites make up 85% of the population, which is somewhat of an overestimate, but since Hispanic offenders cannot be separated from this group without guesswork, it was estimated that they offend at a rate equal to or less than whites for a margin of safety.
The data considered were taken from the 1997 FBI UCR,40 which is the most recent year for which the FBI posts detailed race and crime data on the internet. It is summarized in Table 1, below (The complete table is published in Appendix A).





White Qty.

Black Qty.

Other Qty.

Total Qty.

White %

Black %

Other %

Murder

5,345

7,194

220

12,759

41.9

56.4

1.7

Violent Crime

284,523

205,823

10,275

500,621

56.8

41.1

2.0


Weapons

89,305

60,322

2,614

152,251

58.7

39.6

1.7

Table 1: 1997 UCR extract by race for selected offences
If there were no differences in the arrest rates of people of different races, then it would be expected that blacks would account for 12% of the total volume of crime in each category and whites would account for 85%. It is obvious that in 1997 this was not the case. Still, one may construct a null hypothesis that these deviations are not socially significant but in fact due only to chance. The Chi-Square test for fit determines the probability that a given deviation from the expected, equally-distributed outcome is due to such a random chance. These distributions are illustrated below in Table 2, below.




% Pop


Murder

Expctd.


Murder

Obsvd.


% Obsvd.

Violent

Expctd.


Violent

Obsvd.


%

Obsvd.


Weapns

Expctd.


Weapns

Obsvd.


%

Obsvd.


White

85

10,845

5,345

41.9

425,528

284.523

41.1

129,413

89,305

58.7

Black

12

1,531

7,194

56.4

60,075

205.823

56.8

18,270

60,322

39.6

Other

3

383

220

1.7

15,018

10,275

2.0

4,568

2,614

1.7

Total

100

12,759

12,759

100.0

500,621

500,621

100

152,251

152,251

100.0

Table 2: Differences in observed and expected frequencies by race for selected offences, 1997.
In all three cases, the most rigorous application of Chi-Square analysis at df=2 suggested that there was extremely less than a .01 probability that the offence rates between blacks, whites and all others differed by chance (Table 3, below). This one percent probability is the most stringent measure imposed by social scientists when examining the validity of findings,41 and the Chi-Square scores surpass the cutoff for this level to such a large degree that it suggests a .0001 significance level. The null hypothesis can most certainly be rejected. We cannot say that the disproportionate distribution of arrest rates between races is only due to chance.





Chi-Square Score

df

.01 sig cutoff

Sig. level

Murder

23,805

2

9.211

.01+

Violent crime

401,820

2

9.211

.01+

Weapons poss.

110,035

2

9.211

.01+

Table 3: Chi-Square test for independence; results and significance.
It is important to note here, as it has been noted earlier, that this does not indicate that race and crime are related because people are biologically condemned by their race to commit crimes. It could well be that this link between race and crime is spurious and actually reflects a link between crime, lack of education, and poverty,42 but that “the relationship of crime to poverty is obscured,” and that “white communities tend to be much wealthier than communities of color”.43 Still, the functional difference is nil in that a police officer may still come away with an instrumentally rational tool for use in focusing her efforts. For the tool to be useful, race need only be a more reliable proxy for these other factors than other categories that are just as easily discernable.
Having presented a reasonable case for the empirical bases of racial profiling, it can still be argued that the average police officer does not go to any similar length to formally collect empirical data for her particular racial profiles. Police agencies will not do so in the present political climate, and this decision is a prudent one. The data collection for crime rates in various areas and at various times commonly used to target enforcement usually does not extend to race.
Instead, police officers often rely on two other sources of information: the informal training which more experienced peers impart on them, and their own personal experiences over time. Some protest that these perceptions are by their nature merely based on the type of anecdotal evidence that constitutes stereotyping. However, they are anecdotal only in the sense that any data set is a composition of individual instances, and with a large enough data set this becomes a trivial consideration. If a police officer continues to work where she has traditionally worked or even possibly grew up, then her own past experiences responding to crimes and dealing with local criminals will provide her with a nuanced, adaptable set of guidelines as to what are the most likely attributes of an offender. The more time she has on patrol, the better she will get, as “there is likely to be an enormous difference in the degree of discrimination displayed by a rookie from the suburbs and a veteran officer who has spent years patrolling the neighborhood in which [s]he grew up”.44
It is possible that these impressions are informed by racism, but this only means that some officers wrongly allow racism to color their impressions of what makes a person more likely to be a criminal. The driving force behind profiling in general ought to be the successful apprehension of criminals, and a racism-driven profile will not work towards this end for long unless it only incidentally is concurrent with empirical data. In any case it is immoral, but not to be confused with the mere use of skin color as categorical data.
What this shows is that racial profiling has empirical foundations in two ways. The first derives from analysis of the available data provided by government agencies. The second suggests that even absent formal techniques of data analysis, officers will use their experience in responding to crimes and working in a particular neighborhood to draw their own conclusions about the use of race as a factor of potential criminality. Such data, though assailable as anecdotal, is actually based on immersion in a community and its changing social customs. Regardless of the method employed, these findings suggest that racial profiling—especially when combined with other data—offers utility as a police policy.

Racial profiling’s red herrings

There are several arguments against racial profiling which do not stand up to ethical scrutiny, mainly because they do not attack the practice at its heart, but instead are red herrings. Nonetheless, many of them are rather commonly used. They are discussed below.





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