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Racial Profiling1
John F. ... 1 Although (or perhaps because) racial profiling is a matter of great concern in the U. ... 2 The goal of this essay is to delineate the shape of the moral debate about profiling. Our discussion rests on two assumptions about the productivity of profiling in curbing crime. First, we posit that there is a significant correlation between membership in certain racial groups and the tendency to commit certain crimes. ... We have benefited from reading Schauer’s unpublished work on profiling (to appear in Profiles, Probabilities, and Stereotypes, Belknap Press, 2003). ... This discussion addresses response to black crime, rather than profiling in particular. ... See Gross (2002) and Schuck (2002) for law-oriented views on moral concerns about profiling.
3 (1) For an empirical discussion of the correlation between membership in certain racial groups and the tendency to commit certain crimes, cf. ... Department of Justice, and the homepage of the Racial Profiling Data Collection Resource Center at Northeastern University at http://www. ... The moral problem posed by profiling arises only if measures that appear morally problematic when seen from other angles (such as racial equality) contribute to the provision of a public good as basic as security. Otherwise, racial profiling would be obviously illegitimate. ... If statistics showed that white drivers were more likely to possess drugs, then, if profiling is to reduce crime, it should target whites. ...
Arguments for profiling tend to be utilitarian, but it also has been argued that if all costs of profiling were acknowledged, utilitarian considerations would speak against profiling. Non-consequentialist arguments tend to enter the debate by way of rights- and fairness–based objections to profiling. Our approach illuminates moral aspects of profiling from several widely held moral standpoints without engaging in any foundational debates about them. ... This argument comes with qualifications, and its validity varies across racial groups (and across individuals and communities, as circumstances vary). Our goal is to show under which conditions non-consequentialist objections to profiling are, and are not, telling. The question “Do you support racial profiling? ... While assessments of specific acts of profiling must proceed community by community and context by context -- which limits what philosophical inquiry at the general level can accomplish -- we hope our study invites more philosophical reflection on this subject.
Three issues are commonly conflated in the discussion of “racial profiling.” The first is the use of race as an information-carrier for investigative purposes; the second is police abuse; and the third is the “disproportionate” use of race in profiling (though we shall see that it is often hard to spell out what that means). Many or most discussions of profiling address the second and third issues, but pay little or no attention to distinctions between them.5 We discuss these three issues, but central conclusions take racial profiling to be the use of race as an information-carrier for investigations. ... The report is about “racial profiling,” but it discusses the second and third issues only. ... (For instance, Harris (1999b) concludes: “It is virtually impossible to find African-American people who do not feel that they have experienced racial profiling. ... (2) Note that we are not concerned with the practice of “profiling” in general. Both our conceptual analysis and normative inquiry move at the less abstract level of racial profiling. ... (3) A reader suggested the distinction between “racial profiling as we know it,” which is characterized by the three features distinguished above, and “racial profiling as it might be,” which uses race for police purposes in ways that strike us as justifiable. ... 2 Even though our argument supports profiling in a range of circumstances, it is consistent with support for far-reaching measures to decrease racial inequities and inequality. This may be surprising: some think that arguments in support of profiling can speak only to those who callously disregard the disadvantaged status of racial minorities. ... We do not think that our discussion of profiling bears directly on the permissibility of the use of race in other areas (e. ... Racial profiling is particular in two ways that make it hard to draw such conclusions: first, and most importantly, we are here concerned with a public good (security), and second, situations in which profiling will be used are those in which investigators must make quick decisions about (say) whom to search, or in which large numbers of people are involved; in most other areas a strong case will be available for using (much) additional information about individuals.
Section 2 identifies the defining characteristics of racial profiling. Section 3 elaborates the distinctions between profiling, police abuse and the disproportionate use of race in screening. ... Readers who have thought a great deal about profiling may wish to skim these sections. ... While many people tend to think that utilitarian arguments support profiling, we begin by exploring a
6 (1) Glasser (2000) compares profiling with Jim Crow and the internment of Japanese Americans during World War II. West (2001) lists examples of lingering white supremacy, mentioning profiling alongside drug convictions and executions (p XV). Bill Clinton described racial profiling as a “morally indefensible, deeply corrosive practice” (“Clinton Order Targets Racial Profiling,” Associated Press, June 9, 1999). ... Some believe that the debate about profiling is really about the truth of the assumptions we are making at the beginning of the introduction. Yet there are three significant
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utilitarian argument against profiling and explore its limitations. ... Section 6 outlines the argument that profiling may be in the interest of the African-American community. ...
debates: the first is about the correlation between race and crime and the effectiveness of profiling; the second about legal aspects, and the third about the moral aspects. ... Defining Racial Profiling
2.1 The term “racial profiling,” which was introduced to criticize abusive police practices, carries connotations of illegitimacy.7 Thus, to explore profiling without definitional bias, we must assess how to understand the practice, and how to keep it distinct from other issues. ... (2000) define profiling as “any police-initiated action that relies on the race, ethnicity, or national origin, rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity. ... So profiling relies on (a) rather than (b). ... Thus contrasting (a) and (b) suggests that profiling serves purposes other than apprehending criminals, imparting an aura of illegitimacy to profiling by definition. ... Yet we would still need to talk about profiling if a combination of the two criteria, (a) and (b), motivated action. It would still be profiling if, for example, police stopped 40% of blacks but only 20% of whites exceeding a speed limit by 10 mph.
To steer around such concerns, we define racial profiling as “any police-initiated action that relies on the race, ethnicity, or national origin and not merely on the behavior of an individual. ... 2 We need to specify the focus of our discussion with our definition of profiling in mind. Three paradigmatic cases of profiling help provide that focus. The first
8 Compare other definition of profiling: Banks (2001) defines racial profiling as follows: “[R]acial profiling constitutes the intentional consideration of race in a manner that disparately impacts certain racial minority groups, contributing to the disproportionate investigation, detention, and mistreatment of innocent members of those groups. ... , Banks defines profiling in a manner meant to solicit moral condemnation. Would Banks approve a racial profiling measure that only involved disproportionate investigation of certain groups of citizens? ... Gross and Livingston (2002) submit that “’racial profiling’ occurs whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person’s racial or ethnic group are more likely than the population at large to commit the sort of crime that the officer is investigating” (p 1415). Defining profiling by drawing on individual officers’ beliefs is peculiar. ... It might be useful to distinguish between “racial profiling at the policy level,” and “an individual police officer’s being engaged in racial profiling.” There can be the one without the other; we are interested in profiling at the policy level. ... The second includes racial, ethnic, or nationality screening at airports, widely discussed in the wake of 9/11. In this case, profiling is not used to apprehend individuals who have committed specific crimes or who are likely soon to do so. ... This setting is rather confined: such profiling applies only to people about to board a plane, and they are in a position to expect such measures. The third case involves investigations on highways that rely (in part) on racial criteria, with the goal of intercepting drug traffic, and investigation on streets with the goal of finding illegal weapons. ... Profiling is the more controversial the less immediacy there is to the crime or threat that prompts it, the less one can reasonably expect to be subject to such a measure, and the greater the burden the measure imposes. ... and Gross and Livingston do not count such police actions as profiling.
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addresses cases of the third, most controversial sort of profiling, such as highway searches. We explore to what extent profiling can be justified under appropriate conditions even in such cases. ... Somebody claiming that profiling is justified in the first or second but not in the third, would need to argue for that determination. This study addresses the routine use of profiling for the prosecution, identification, and prevention of crimes. ... Racial Profiling, Police Abuse, and Disproportionate Screening
3.1 To focus the discussion further, we address two subjects commonly conflated with profiling as we define it: police abuse and disproportionate screening of minorities. Profiling makes headlines mostly when coupled with abusive police behavior: rude words, demeaning demands, physical force, or physical injury. As a result, when profiling is debated, abuse usually plays a prominent role. ... This type of profiling was reported by Alvin Penn, the African-American deputy president of the Connecticut State Senate. In 1996, a Trumbull, CT, police officer stopped
10 Also, profiling is more controversial the less obvious it is that everybody searched is affected by the goal of the investigation, and the greater the magnitude of the possible harm; our cases do not make this clear. ... Yet while attitudes toward profiling depend on the perception of how much abuse occurs, police abuse and profiling as we define it are different problems that must be assessed independently and have different remedies.12
12 Some may argue that abuse and profiling are not independent. The following claims seem to us to be true, and justify our thesis that police abuse and profiling are independent issues: (1) If police abuse ceased to occur, profiling would still be an effective means to reduce crime, but would also still be in need of justification. (2) If no profiling occurred, abuse would still persist. Claims (1) and (2) are consistent with the following claims: (3) Racial profiling plays some causal role in the occurrence of abuse. ... ) (4) Police abuse helps stimulate some of the activities that profiling is intending to reduce. ... ) (5) Some police officers practice profiling as a form of harassment, and thus profiling brings about situations in which abuse becomes possible to begin with. ... 2 The “disproportionate” investigation of minorities also tends to be conflated with profiling. ... Profiling ignites indignation since it affects minorities “disproportionately;” but it is not always clear which sense of proportionality is meant. ... Individuals have a legitimate complaint if profiling occurs in a manner disproportionate to those goals. ...
13 Banks (2001), for instance, introduces disproportionality into the definition of profiling, suggesting that “racial profiling constitutes the intentional consideration of race in a manner that disparately impacts certain racial minority groups, contributing to the disproportionate investigation, detention, and mistreatment of innocent members of those groups. ... Proportionality as fairness appears in section 5, when we discuss non-consequentialist objections to profiling. ... The same is true for the proposal that, if 40% of the inhabitants of a certain area belong to G, then 40% of the searches would have to be of them; the proposal that each perpetrator should have an equal likelihood of being apprehended; and the proposal that, for each racial group, each innocent person must have an equal likelihood of being left alone. ... In routine uses of profiling for intercepting drug traffic or seizing illegal weapons, for example, indicators beyond race and gender are telling. ... For example, black-on-black crime or victimless crime (using drugs) may be a significant component of differential crime rates for blacks, but these crimes are irrelevant to potential for profiling in predominantly white communities. ... 18
17 The evidence that is to be considered for assessing profiling is highly contextual: a black person cruising in a lily-white area may give more reason for suspicion, other things being equal, than one in a mixed middle-income neighborhood, just as a white person cruising in a black ghetto is more likely than a black or white elsewhere to be up to no good. ...
18 One other fairness-related worry about profiling (that we endorse) is that it should be consistently practiced across the board, other things being equal. It is illegitimate for a jurisdiction to apply profiling only when it targets minorities, but not when the priority targets would be mostly whites. ... Police should be seen to apply profiling even-handedly. Even in cases in which some acts of profiling are acceptable by themselves (non-comparatively), there will be a legitimate complaint otherwise (from a comparative viewpoint). In addition, everybody must be informed about the reasoning behind profiling and the compensation arrangement. ... We are interested in the legitimacy of profiling if certain minorities are more likely to commit certain crimes that society takes seriously. ... 19
Second, it is sometimes argued that there is a moral difference between using race as one of many criteria for profiling and using it as the only criterion. ... 1 From now on, we will talk about racial profiling in the sense defined in 2. ... We now explore arguments in support of and against profiling. The case for profiling tends to be utilitarian (or otherwise consequentialist), whereas non-consequentialist considerations enter mostly as objections. ...
Certain crimes, the utilitarian argument for racial profiling assumes, are committed disproportionately by certain racial groups. ... 20 Kennedy embraces that stance, but disputes that it justifies profiling. ... Once these costs are incorporated,
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Kennedy claims, a utilitarian argument against profiling emerges. ... But profiling seems to have such effects only against the background of a society that minorities already perceive as racist. While profiling causes inconvenience and other harm, sometimes considerable, the primary contributor to resentment, hurt, and loss of trust is likely to be underlying racism or underlying socio-economic disadvantages, rather than profiling as such.
If so, utilitarian considerations must factor in the incremental harm inflicted by profiling as such. This will be small if most of the overall level of harm that seems to be caused by profiling is plausibly ascribed to underlying causes. We submit then, that in a range of plausible cases, utilitarian considerations support racial profiling. ... Two facts will become clear as we go along: first, that the utilitarian case turns on factual and counterfactual claims that are hard to verify; and second, that utilitarian justifications in particular illustrate that investigations of profiling will have to proceed community by community and context by context.
In assessing the kinds of harm caused by profiling, we follow Kennedy: the damage done seems to us well captured in terms of a feeling of resentment, sense of hurt, and loss of trust in law enforcement. ... The extent to which one feels the first kind of resentment, and also its nature (whether it is based on shame or, say, moral indignation) depends on society’s regard for the characteristic that caused one to become a target of profiling, and on why one thinks one “really” is targeted. ...
This section aims to ascribe much of the harm ostensibly done by profiling to underlying systematic racism rather than the acts of profiling. ... That sort of harm must be attached to profiling per se. ... 2 We are making two claims: First, the harm caused by profiling per se is largely due to underlying racism. That is, acts of profiling are harmful because they make concrete and real the fact of some people’s unjustly inferior social standing; they express the underlying injustice of racism. Second, the incremental harm done by profiling often factors into utilitarian considerations in such way as to support profiling. ... Consider also a possible world that differs from ours in that racial profiling has been effectively banned. Ours could become such a world following, say, a sweeping Supreme Court ruling outlawing racial profiling. ... Simply stopping the practice of profiling would do little to change society’s underlying racism and thus little to alter the attitudes that lead to police abuse and also promote various forms of racism in other segments of life.
These thought experiments suggest that acts of profiling viewed as encounters of a disadvantaged minority with representatives of institutions that are perceived to be
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responsible to a large degree for that disadvantaged status are harmful largely because they serve as a focal point of resentment. Put differently, the harm attached to profiling per se is expressive. ... To return to the racial context in the US, expressive harm is sometimes incurred even if race plays no role in the relevant actions. ... 3 Our first claim, then, is that profiling is harmful largely in an expressive manner, specifically, because it serves as a focal point for the racial injustices of society. ... ) The resentment it triggers can be traced largely to the underlying racism of which acts of profiling become the focal point. ... 22 This does not mean that the harm caused by racial profiling can be disregarded. However, it does affect how the harm caused by racial profiling should be integrated into utilitarian calculations (on which more shortly). ... 2 by way of giving one
22 If this claim is correct, it helps us understand why whites frequently have trouble understanding why in particular blacks object so vehemently to racial profiling; blacks grow up in a society that they perceive as racist, and profiling is a focal point of this racism; whites usually view profiling in isolation. ... To be sure, these are not, strictly speaking, cases of profiling as defined in section 2. ... So indeed, such treatment itself, especially profiling, is not the primary
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cause of the feeling of resentment and sense of hurt among minorities and the loss of trust in the police that it triggers. This strikes us as true even when profiling serves as the single most important practice expressive of underlying racism. ... 4 If we are correct, what must enter the cost-benefit assessment of racial profiling is the incremental increase in harm those acts impose, not the overall level of harm ostensibly associated with them. So what utilitarians must assess is whether the incremental increase in harm caused by profiling as such, rather than the overall amount that comes to the fore in acts of profiling but is largely caused by underlying racism, outweighs the advantages of crime reduction. We argue next that the harm done by profiling per se is comparatively modest, in that the costs may well be outweighed by its benefits in reducing crime and attendant benefits that it brings, such as economic activity in a community.
Approximate Word count = 16150
Approximate Pages = 64.6
(250 words per page double spaced)
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