RACIAL PROFILING

The consideration of race, ethnicity, or national origin by an officer of the law in deciding when and how to intervene in an enforcement capacity.

Police officers often profile certain types of individuals who are more likely to perpetrate crimes. Many of these suspects are profiled because of activities observed by police officers. For example, if someone who is obviously poor is frequently seen in a more affluent neighborhood, such a person may be profiled as someone with possible criminal intent. Similarly, if an individual living in an obviously poor neighborhood has in his or her possession several expensive items, that person may be profiled as someone involved in crime, such as drugs or theft. Although this type of profiling is not always considered fair, law enforcement officers consider it necessary to identify possible criminal activity before it occurs and causes injury to others.

One of the most heated issues in law enforcement is the profiling of individuals based solely upon the race, ethnicity, or national origin of the individual. Statistics show that African Americans are several times more likely to be arrested and incarcerated than white Americans. As of 2000, fewer African American men were in college than were in prison. Moreover, black children were nine times as likely as white children to have at least one parent in prison.

The most common form of racial profiling occurs when police stop, question, and search African American, Hispanic American, or members of other racial minorities disproportionately based solely on the individuals' race or ethnicity. In 1996, the television network ABC aired a report entitled "Driving While Black," in which it paid three younger black men to drive around the city of New Brunswick, New Jersey, in a Mercedes-Benz. Three officers in the city pulled over the car for a minor traffic infraction and then proceeded to search the car and the young men. The show demonstrated with little doubt that the only reason the three men were pulled over was their race. Nevertheless, the officers brought a defamation suit against ABC, claiming that ABC had defamed their character and had violated New Jersey's anti-wiretapping law. In 2000, a New Jersey Superior Court judge dismissed the lawsuit.

Should Police Practice Racial Profiling?

The 1998 shooting death of three young minority men by state troopers during a traffic stop on the New Jersey Turnpike helped spark a national debate on the issue of so-called "racial profiling" by law enforcement officials. Critics of profiling charge that the practice is inherently racist, because law enforcement officials tend to stop and search African Americans and other minorities more often than whites. Critics also charge that aggressive stop-and-search tactics erode public confidence in law enforcement and violate the civil rights of all citizens. In 1999, they led the charge for federal legislation to determine the extent to which racial profiling is practiced. Defenders of profiling concede that some law enforcement officials may stop and search blacks and other minorities at a disproportionately high rate. However, they ascribe this to overzealous police work and believe it can be addressed through training. Furthermore, they credit profiling, in part, with a significant decrease in America's crime rate and oppose efforts to collect data on stop-and-search tactics.

Critics of profiling acknowledge that law enforcement officials have broad discretion when it comes to stopping and searching citizens. On the highway, evidence of a traffic infraction alone is justification for stopping a motorist. Off the highway, a police officer must have a "reasonable suspicion" that a person is armed and presents a danger, and must be able to articulate why he or she felt that way. This "reasonable suspicion" standard evolved from a landmark 1968 Supreme Court decision, terry v. ohio, 392, U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and it is significantly lower than the "probable cause" standard that police must meet to make an arrest or to obtain a search warrant. Just how much lower has been the subject of much debate and considerable litigation. The courts have consistently held that simply being of a certain race or fitting a certain type or loitering in a high-crime area does not constitute sufficient grounds for frisking. Making a furtive gesture or having a bulge in your pocket, on the other hand, does.

The extent to which racial stereotyping is used in identifying "suspicious" individuals is a key point of contention in the debate over profiling. Critics of profiling point to statistics that indicate that African American and other minority drivers are stopped and searched at a disproportionately high rate in comparison with white motorists. In Maryland, for example, a study revealed that 70 percent of those stopped and searched on a stretch of I–95 were African American—despite the fact that they represented only 17 percent of drivers on the road. A demographic expert who examined the data described the odds of this disparity's occurring by chance as "less than one in one quintillion." A similar study conducted in New Jersey in 1994–95 showed that on the southern section of the New Jersey Turnpike cars with black occupants represented only 15 percent of those violating the speed limit, yet they accounted for 46 percent of the drivers pulled over.

Profiling's detractors renounce efforts to defend profiling on the grounds that tendency toward criminality, not race or ethnicity, is being profiled as reflecting a pattern of stereotyping by police. When police look for minorities, these critics say, it is minorities they will arrest. While acknowledging the role of aggressive policing in the recent drop in crime, they decry the deleterious effect of profiling on public confidence in law enforcement, particularly in minority communities. How many innocent citizens have to be inconvenienced, these critics ask, in order to keep the streets free of criminals?

The lack of national data on profiling has led critics of the practice to call for national legislation to study the problem. In 1999, both the House and the Senate introduced bills entitled the Traffic Stops Statistics Act of 1999 (H.R. 1443, S. 821, 106th Cong., 1st Sess.), which would have required the attorney general to conduct a study of stops for routine traffic violations by law enforcement officers. However, the bills died after committee deliberations.

Defenders of profiling are quick to deny or deemphasize its racial component. They condemn profiling solely on the basis of race, but defend profiling by looking for signs that a person might be a lawbreaker as good police work. If blacks are being stopped and searched at a disproportionately high rate as compared to whites, they charge, it is because they commit a disproportionately high number of crimes. Defenders of profiling point to statistics that show, for example, that while blacks comprise only about 13 percent of the population, they make up 35 percent of all drug arrests and 55 percent of all drug convictions.

Where there is unreasonable racial stereotyping, these defenders assert, the problem is easily solved by training and discipline. Police Academy graduates in New York City, for example, are drilled insistently on what does and does not constitute reasonable grounds for a frisk. Members of the city's elite Street Crimes Unit receive a copy of the department's training manual, "Street Encounters," which expressly stipulates that if an officer's reason for approaching someone "is a personal prejudice or bias, such as the person's race or hair length, the encounter is unlawful."

Furthermore, defenders of profiling argue that it has proven to be an effective tactic in the fight against crime. Profiling, they say, allows law enforcement officials to focus their attention on those thought most likely to commit crimes. If this sometimes results in law-abiding citizens being inconvenienced when police aggressively enforce the laws and investigate crimes, this should not cause those stopped and searched to believe that their rights were violated. As the nation's violent crime rate continues to plummet, profiling advocates ask, is it an acceptable time to change police practices that have contributed to this drop in crime?

Law enforcement groups have been almost universal in their opposition to legislation requiring a study of traffic stops, such as the the Traffic Stops Statistics Study Act. They claim that it would be costly and could lead to lawsuits against police. The bill, they say, would place an unfair burden on the police and lengthen traffic stops. In addition, collecting information on personal characteristics would likely be considered highly offensive by many individuals. If an officer is uncertain of someone's ethnic background, for example, the officer would often have to ask for this information and an uncomfortable situation could result.

In June 1999, the Massachusetts Supreme Judicial Court ruled in a 5–2 decision that police in Massachusetts cannot order people out of their cars unless they pose a threat, which is a stricter standard than the U.S. Supreme Court handed down in its decision that police may order people out of their cars on routine traffic stops. The majority opinion cited concerns of racial discrimination by police in its ruling, taking note of allegations that police stop African Americans disproportionately.

The incident in "Driving While Black" demonstrates that racial profiling does occur, but lawmakers and courts have had some difficulty controlling its influence. Under federal constitutional law, a police officer who stops a car for a minor traffic violation may search the car and its driver if the driver consents. Such searches sometimes result in arrests if drugs or weapons are discovered, but they have become a controversial law-enforcement technique, even when such searches do not involve incidents of racial profiling. However, the frequency with which racial profiling occurs against minorities has spurred civil liberties and civil rights groups to demand stricter limitations on when officers may request a vehicle search.

New Jersey has remained in the national spotlight with respect to incidents of racial profiling. Former New Jersey Governor Christine Todd Whitman and the state attorney general admitted that New Jersey state police had engaged in racial profiling. Late in 1999, the New Jersey state police entered into a consent decree in a federal case by which the police agreed to require reasonable suspicion of a crime before asking for consent searches during traffic stops. In a decision in 2002, the New Jersey Supreme Court made the policy a mandatory requirement under the Constitution of New Jersey for all law enforcement officers in the state.

Other states have made similar concessions. In January 2003, the Maryland State Police settled a class action lawsuit brought by the american civil liberties union (ACLU) regarding the use of racial profiling in that state. The settlement included an agreement by the Maryland police to enact sweeping changes to

prevent profiling of racial minorities. The ACLU has targeted other state law enforcement offices as well.

The United States has a history of racial profiling, and, in some cases, the incidents were particularly egregious. During world war ii, the U.S. government, fearful of potential spies from Japan, sent hundreds of thousands of Japanese Americans to detention camps in southern California. Many of those incarcerated were American citizens. In a decision that has largely been considered one of the most iniquitous in the history of the Supreme Court, korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 2d 194 (1944), the Court found that during times of war, the military should have discretion to make decisions regarding the incarceration of certain groups and that the government's actions in incarcerating Japanese Americans were justified.

During the september 11th attacks,19 Middle Eastern terrorists carried out a terrorist plot that resulted in the destruction of the World Trade Center in New York, severe damage to the Pentagon in Washington, D.C., and a major loss of life. After the attacks, the United States announced it would wage a war on terrorism, which included enhancements in the ability of law enforcement personnel to track, question, and even arrest individuals suspected of terrorist activities.

In the first two weeks after the attacks, federal officials arrested or detained more than 500 people. Thousands of resident aliens were also questioned. The vast majority of those questioned or arrested were Arab Americans or of Middle Eastern nationalities. Some commentators have suggested that the questioning of members of these nationalities and ethnic backgrounds is justified because a disproportionate number of terrorists are Arabic or Middle Eastern. However, civil rights groups have decried the practice of subjecting these individuals to questioning based solely on their race or ethnicity.

One of the most significant differences between racial profiling of African and Hispanic Americans and the profiling of potential terrorist threats is the level of support expressed by citizens for such profiling. According to statistics in 1999, 81 percent of respondents in a national poll disapproved of the practice of racial profiling, defined narrowly as the practice of police officers stopping motorists based solely on the race or ethnicity of those motorists. However, after the terrorist attacks, 58 percent of respondents in another poll favored the practice of subjecting Arabs to more intensive scrutiny when they boarded planes.

Other questions also have been raised about the profiling of Arabic and Middle Eastern individuals. Even if, in the post–September 11 period, profiling was acceptable to prevent a reoccurrence of terrorist attacks, for how long should this practice be acceptable? Moreover, if this practice is successful in preventing terrorist activities, should it be extended to other "suspect" groups, which may include African or Hispanic Americans?

These types of questions have been raised in other contexts. For example, commentators have suggested that the war on drugs and narcotics has clear overtones of racism. According to a study in 1986, an African American was six times as likely as a white American to go to jail for a drug related offense. By 1996, an African American was 22 times as likely to be incarcerated for such an offense. Because the war on drugs has been an ongoing battle, several commentators have suggested that profiling in this war has become perpetual.

Complaints of racial profiling are not limited to law enforcement personnel. Some department and other retail stores have been accused of denying service or giving inferior service to members of minority groups. Several establishments, including Eddie Bauer, Dillard's Department Stores, and Denny's Restaurants, have been sued in highly publicized cases in which plaintiffs have alleged that the establishments have discriminated on the basis of race. Complaints of discrimination against Arabic and Middle Eastern individuals have also been raised against private companies. In April 2003, the U.S. transportation department submitted a complaint that American Airlines had removed from flights at least ten individuals suspected of being Middle Eastern, Southeast Asian, or Muslim.

further readings

Ellmann, Stephen J. 2003. "Racial Profiling and Terrorism." New York Law School Journal of International and Comparative Law 22.

Fredrickson, Darin D., and Raymond P. Siljander. 2002. Racial Profiling: Eliminating the Confusion Between Racial and Criminal Profiling and Clarifying What Constitutes Unfair Discrimination and Persecution. Springfield, Ill.: Charles C. Thomas.

Gross, Samuel R., and Debra Livingston. 2002. "Racial Profiling Under Attack." Columbia Law Review 1413.

Harris, David A. 2003. "Racial Profiling Redux." St. Louis University Public Law Review 73.

Heumann, Milton, and Lance Cassak. 2003. Good Cop, Bad Cop: Racial Profiling and Competing Views of Justice in America. New York: P. Lang.

Sandy, Kathleen R. 2003. "The Discrimination Inherent in America's Drug War: Hidden Racism Revealed by Examining the Hysteria Over Crack." Alabama Law Review 665.

cross-references

Civil Rights; Drugs and Narcotics; Equal Protection; Fourth Amendment; Terrorism.

RACIAL PROFILING

"Profiles," formal and informal, are common in law enforcement, particularly in narcotics law enforcement. They consist of general characteristics and features that might make a law enforcement officer suspicious. In some instances, law enforcement agencies formulate and disseminate formal profiles to officers to guide their investigative actions. Even when profiles are not formally maintained, however, officers inevitably rely on their past experience to generate informal profiles for whom to follow more closely, approach, stop, or question. There is nothing wrong with profiling as a general practice, but when race becomes a factor in a profile, serious constitutional and ethical issues arise.

Racial profiling is the use of racial generalizations or stereotypes as a basis for stopping, searching, or questioning an individual. Racial profiling received a great deal of attention in the United States in the late 1990s as a result of a series of prominent incidents and the release of data on police practices from several jurisdictions. The data consistently showed that African Americans and Hispanics are disproportionately targeted by law enforcement for stops, frisks, and searches. Court records showed, for example, that in Maryland African Americans made up 70 percent of those stopped and searched by the Maryland State Police from January 1995 through December 1997, on a road on which 17.5 percent of the drivers and speeders were African American. A 1999 report by the New Jersey Attorney General found that 77 percent of those stopped and searched on New Jersey highways are African American or Hispanic, even though, according to one expert, only 13.5 percent of the drivers and 15 percent of the speeders on those highways are African American or Hispanic. An Orlando Sentinel analysis of 1,000 videotapes of Florida state trooper traffic stops in 1992 showed that on a road where 5 percent of the drivers were African American or Hispanic, 70 percent of those stopped and 80 percent of those searched by the Florida state police were African American or Hispanic.

Racial targeting need not be expressly invited by a profile. Consider, for example, the U.S. Drug Enforcement Agency's (DEA) drug courier profile for airports. All the factors listed below have been identified by DEA agents in court testimony as part of the DEA's drug courier profile:

arrived late at night
arrived early in the morning
arrived in afternoon
one of first to deplane
one of last to deplane
deplaned in the middle
bought coach ticket
bought first-class ticket
used one-way ticket
use round-trip ticket
paid for ticket with small denomination currency
paid for ticket with large denomination currency
made local telephone call after deplaning
made long-distance telephone call after deplaning
pretended to make telephone call
traveled from New York to Los Angeles
traveled to Houston
carried no luggage
carried brand-new luggage
carried a small bag
carried a medium-sized bag
carried two bulky garment bags
carried two heavy suitcases
carried four pieces of luggage
overly protective of luggage
disassociated self from luggage
traveled alone
traveled with a companion
acted too nervous
acted too calm
made eye contact with officer
avoided making eye contact with officer
wore expensive clothing and gold jewelry
dressed casually
went to restroom after deplaning
walked quickly through airport
walked slowly through airport
walked aimlessly through airport
left airport by taxi
left airport by limousine
left airport by private car
left airport by hotel courtesy van
suspect was Hispanic
suspect was African-American female

Even without the last two factors, this profile describes so many travelers that it does not so much focus an investigation as provide DEA officials a ready-made excuse for stopping whomever they please. A Lexis review of all federal court decisions from January 1, 1990 to August 2, 1995, in which drug courier profiles were used and the race of the suspect was discernible, revealed that of sixty-three such cases, all but three suspects were minorities: thirty-four were African-American, twenty-five were Hispanic, one was Asian, and three were white. While this is not a scientific sampling—it does not include cases in which the race of the suspect could not be discerned, and it does not include cases that did not result in judicial decisions (either because there was no arrest or indictment, or because the defendant pleaded guilty)—the statistics are so one-sided as to raise serious questions about racial targeting.

Although statistical data alone do not conclusively establish that officers are engaged in "racial profiling," they provide strong circumstantial evidence. Many police officers, moreover, admit that all other things being equal, they are more suspicious of, for example, young African-American men than elderly white women. Nor is such thinking irrational. Criminologists generally agree that young African-American men are more likely to commit crime than elderly white women, because at least with respect to some crime, young people commit more crime than old people, men commit more crime than women, and African Americans commit more crime than whites. Indeed, it is precisely because the use of race as a generalization is not irrational that racial profiling is such a widespread phenomenon.

In some areas, however, there is evidence that the use of racial profiles is irrational. The strongest evidence is with respect to drug law enforcement. Much of the racial profiling that occurs on the nation's highways is conducted for drug law enforcement purposes. Officers use the pretext of a traffic infraction to stop a car and then ask for consent to search the car for drugs. This tactic has been expressly approved by the U.S. Supreme Court.

Yet studies show that officers get virtually the same "hit rates" for whites and African Americans when they conduct traffic stops for drugs. In other words, officers are no more likely to find drugs on an African-American driver than a white driver. Consistent with these results, the U.S. Public Health Service has found, based on confidential self-report surveys, that African Americans and whites use illegal drugs in rough proportion to their representation in the population at large. In 1992, for example, 76 percent of illegal drug users were white and 14 percent were African American. Since most users report having purchased drugs from a dealer of the same race, drug dealing is also likely to be fairly evenly represented demographically. Thus, the supposition that African Americans are more likely to be carrying drugs is sharply contradicted by the data.

In any event, even where demographic data suggests that the practice of racial profiling may not be irrational, it is both unconstitutional and unwise. Because of the pernicious history of racial classifications in the United States, the Supreme Court forbids official reliance on racial generalizations—even accurate ones—except when there is no other way to achieve a compelling government end. The usual argument police officers advance in defense of profiling is that it recognizes the unfortunate fact that minorities are more likely than whites to commit crime. But while this may be true with respect to some crimes, the generalizations are hopelessly overinclusive even as to those crimes. The fact that African Americans are more likely than whites to engage in violent crime, for example, does not mean that most African Americans commit violent crime. Most African Americans, like most whites, do not commit any crime; annually, at least 90 percent of African Americans are not arrested for anything. On any given day, the number of innocent African Americans is even higher. In addition, when officers focus on minorities, they lose sight of white criminals. Race is a terribly inaccurate indicator of crime.

Most important, relying on race as a factor for suspicion violates the first principle of criminal law: individual responsibility. The state's authority to take its citizens' liberty, and in extreme cases, lives, turns on the premise that all are equal before the law. Racial generalizations fail to treat people as individuals. As a result, policies that tolerate racial profiling undermine the criminal law's legitimacy. As any good leader knows, and many criminologists have confirmed, legitimacy is central to getting people to follow the rules. If people believe in the legitimacy and fairness of the system, they are much more likely to abide by the rules than if they see the system as unjust. Thus, racial profiling may indeed contribute to crime by corroding the legitimacy of the criminal law.

Efforts to halt racial profiling are now in place in many American jurisdictions. In 1999, President Clinton ordered all federal agencies to study their law enforcement practices to root out racial profiling, and several states and cities—including North Carolina, Connecticut, Florida, Houston, and San Diego—have required reporting on the racial patterns of law enforcement. Such reporting is the first step toward ending the practice, because as long as records of police practices are neither kept nor made public, the nature and extent of the problem will be hidden. The second step requires clear statements by law enforcement officials stipulating that racial profiling is impermissible: Precisely because racial profiling is deeply embedded in the culture and not always irrational, police officers are likely to continue to do it unless the practice is clearly prohibited. And the third step will require effective monitoring and discipline. It remains to be seen whether racial profiling can be halted effectively.

BIBLIOGRAPHY

Cole, D. (1999). No equal justice: Race and class in the American criminal justice system. New York, NY: New Press.

Harris, D. (1999). Driving while black: Racial profiling on our nation's highways. New York, NY: American Civil Liberties Union.

Harris, D. (1999). The stories, the statistics, and the law: Why driving while black matters, Minnesota Law Review, 84 (2), 265-326.

David D. Cole

Racial Profiling

In law enforcement, a profile is a set of general characteristics and features that are defined as being suspicious. For example, if a series of bank robberies occur involving young men in leather jackets, neighborhood police may profile young men in leather jackets. This means that the police will view people fitting this description as more likely suspects. In turn, the police will be more likely to stop and question young men wearing leather jackets than people meeting other descriptions. Racial profiling is the use of racial generalizations or stereotypes as a basis for stopping, searching, or questioning an individual. In contrast with profiling in general, racial profiling raises serious issues about the civil rights of individuals who are stopped only because they appear to be of a particular race. Some experts prefer the term "racially biased policing" because of difficulties in precisely defining racial profiling.

Racial profiling plays a role in the enforcement of drug laws. For example, the Drug Enforcement Agency uses racial profiling to target people transporting drugs at airports. On the nation's roads and highways, local law-enforcement officers may use a minor traffic violation as an excuse to stop a car and then ask for consent to search the car for drugs. Officers target black drivers more often than white drivers, yet studies show that searches of black drivers are no more likely to turn up drugs than searches of white drivers.

Efforts to halt racial profiling are now in place in many states. In 1999 President Bill Clinton ordered all federal agencies to study their law-enforcement practices in order to end racial profiling where it was found to be in use. During 2000 more than twenty-five states introduced measures dealing with racial profiling by law-enforcement officers, with eighteen states taking significant action. Eight states (California, Kansas, Massachusetts, Missouri, Oklahoma, Rhode Island, Tennessee, and Washington) ultimately passed racial profiling legislation. Efforts to achieve bias-free policing include improving supervision of officers and holding them accountable; improving recruitment and hiring procedures; educating and training police staff; improving outreach to minority communities; and collecting and analyzing data about the race or ethnicity of citizens in their contact with police. Many cities and states are struggling with lawsuits resulting from the heightened awareness of racial profiling. A well-publicized racial profiling suit, brought against the city of Cincinnati and its police department in 2001, was settled in early 2002 after much community involvement. Some fear, however, that in the wake of the September 11, 2001, terrorist attacks on the United States, racial profiling will continue and may be harder to end than was once hoped.