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The Concept of Racial Profiling
Rick Garlikov
There is ample evidence that racial profiling (also sometimes called "racially biased policing"), as it is described in the ensuing ACLU passages, exists.  And it is clearly an evil practice.  However, race, ethnicity, and gender are also characteristics that are merely descriptive in nature, and since police depend on descriptions to apprehend criminals or those planning crimes, the question arises whether and when race, ethnicity, or gender alone might be appropriate and justified characteristics on which police ought to act.  This paper is intended to analyze what unjustified racial profiling or racially biased policing is, and in particular how it might be distinguished from any possible justifiable practice of having sufficient description of a suspect, based on race, ethnicity, or gender alone, in order to implement proper police procedures (e.g., suspicion, surveillance, approach, questioning, etc.) 

The following, from an ACLU website, are examples of the practice as it is unjustified: 

Is Jim Crow Justice Alive and Well in America Today?
"Racial profiling" occurs when the police target someone for investigation on the basis of that person's race, national origin, or ethnicity. Examples of profiling are the use of race to determine which drivers to stop for minor traffic violations ("driving while black") and the use of race to determine which motorists or pedestrians to search for contraband. 

Racial profiling is prevalent in America. Despite the civil rights victories of 30 years ago, official racial prejudice is still reflected throughout the criminal justice system. For people of color in cities large and small across this nation, north and south, east and west, Jim Crow "justice" is alive and well. 

Today skin color makes you a suspect in America. It makes you more likely to be stopped, more likely to be searched, and more likely to be arrested and imprisoned. 

One of the ACLU's highest priority issues is the fight against the outrageous practice of racial profiling. Our recently released report Driving While Black: Racial Profiling On Our Nation's Highways, documents this practice of substituting skin color for evidence as a grounds for suspicion by law enforcement officials. 

Tens of thousands of innocent motorists on highways across the country are victims of racial profiling. And these discriminatory police stops have reached epidemic proportions in recent years - fueled by the "War on Drugs" that has given police a pretext to target people who they think fit a "drug courier" or "gang member" profile. 

We must put an end to the practice of racial profiling. 

That is why the ACLU has undertaken a major initiative to put an end to discriminatory police stops, including the launch of our Arrest the Racism campaign. This special web-based campaign is designed to educate the public and enlist citizens in the fight to end racial profiling in America. 

New Jersey officials first admitted to racial profiling on the New Jersey Turnpike in a report released on April 20, 1999. The report showed that racial profiling practices in New Jersey are not just a perception. "The evidence we have compiled clearly shows that the problem is real," officials acknowledged in the report. The report attributed the targeting of African American and Latino drivers to troopers who abused their positions by disregarding the rights of minority motorists. 

The ACLU lawsuit, White v. Williams, involves minority motorists who were stopped on the New Jersey Turnpike based on racial profiling practices by the state police. ACLU clients include Dr. Elmo Randolph, a dentist who drives a luxury car and has been stopped by police approximately 100 times without ever receiving a ticket. Dr. Randolph was subjected to searches of his car and interrogations about his profession and how and where he bought his car on numerous occasions. 

And the following, from a website of the Police Executive Research Forum, further discusses and describes the practice as it is unjustified, and the passage quoted offers policy guidelines to prevent it: 

"Fridell, Lorie, Robert Lunney, Drew Diamond and Bruce Kubu. 2001. Racially Biased Policing: A Principled Response. Washington, D.C.: Police Executive Research Forum (in particular the chapter Critical Issues in Racially Biased Policing

A policy to address racially-based policing 

A) Policing Impartially 
1. Investigative detentions, traffic stops, arrests, searches, and property seizures by officers will be based on a standard of reasonable suspicion or probable cause in accordance with the Fourth Amendment of the U.S. Constitution. Officers must be able to articulate specific facts and circumstances that support reasonable suspicion or probable cause for investigative detentions, traffic stops, arrests nonconsensual searches, and property seizures.  Except as provided below, officers shall not consider race/ethnicity in establishing either reasonable suspicion or probable cause. Similarly, except as provided below, officers shall not consider race/ethnicity in deciding to initiate even those nonconsensual encounters that do not amount to legal detentions or to request consent to search. Officers may take into account the reported race or ethnicity of a specific suspect or suspects based on trustworthy, locally relevant information 
that links a person or persons of a specific race/ethnicity to a particular unlawful incident(s). 
Race/ethnicity can never be used as the sole basis for probable cause or reasonable suspicion. 
2. Except as provided above, race/ethnicity shall not be motivating factors in making law enforcement decisions.

Part B then goes on to give procedures (e.g., acting courteously in various ways) intended to prevent perceptions of biased policing.  For purposes of this paper, I am only interested in the concept of biased policing or racial profiling, not in the perception of it.  Perception of biased policing is an important issue in itself, but a separate one, since appearances can be deceiving in either direction.  That is, racial bias can appear not to exist in a particular incident even when it does, and it can appear to exist in a particular police incident even though it is not actually a causal or motivating factor in that incident. 

Notice the ACLU says that: "Racial profiling" occurs when the police target someone for investigation on the basis of that person's race, national origin, or ethnicity.  And the PERF policy is very similar when it says: Race/ethnicity can never be used as the sole basis for probable cause or reasonable suspicion.

However, the PERF policy goes on to say that "Officers may take into account the reported race or ethnicity of a specific suspect or suspects based on trustworthy, locally relevant information that links a person or persons of a specific race/ethnicity to a particular unlawful incident(s)." 

This essay is an attempt to distinguish when racial profiling might be justified from when it is not, or in the PERF terminology to distinguish between using race/ethnicity as the sole basis for probable cause or reasonable suspicion on the one hand and, on the other, using it as legitimate information to link someone of a specific race or ethnicity to a crime, or to a planned or seriously contemplated crime. 

Notice first, however, that knowing what racial profiling is does not necessarily allow you to know when it occurs.  There will be cases where police can say the evidence they had available is what caused them to stop a particular person when in fact that was not the actual reason they stopped that person.  Insofar as racial bias is an internal psychological motive, it is, in particular cases, often difficult to be able to prove or identify.  In some cases a policeman may not know him/herself whether s/he was operating under a bias or made a legitimate deduction.  Nevertheless, it is important to know what constitutes racially/ethnically biased policing. 

Also, one cannot tell merely from certain kinds of police encounter statistics (though one might have a reasonable suspicion) whether the police are targeting people based on racial motives.  Police patrols in, for example, black neighborhoods would obviously more likely afford more police encounters with black citizens than with white citizens.  And, if for some reason, some ethnic group was more likely than any other to commit certain infractions or if there were more crime in some kinds of neighborhoods than others, it would follow that the percentage of police encounters involving that group's members would be higher than their percentage in the population.  For example, it might turn out that white collar crime is primarily a white male type of activity.  Or if white males have far more access than others to positions that would allow white collar crime, then it would be reasonable for white males to be charged with such crimes in a higher percentage of cases than the white male proportion of the population in general.  In order to see that police are biased in their policing, one would have to see that they do not treat people equivalently under legally relevant similar situations.  If police officers ignore white or white male speeders they see but stop and ticket black or female drivers going the same or even slower speeds, then that is grounds for believing the officers are policing on a gender or racial bias. 

Biased policing is policing that gives preferential treatment to some races, genders, or ethnic groups or that essentially harasses or punishes members of those groups which are disliked or considered to be suspect just because of their race, gender, or ethnicity even though they do not fit a description of anyone who is committing crimes or who has committed a crime. 

Justifiable Profiling and
Non-biased Race-based Policing

It is my contention, however, that it is not racially biased policing, and it is not a bad form of racial profiling, for police to initiate properly proportional measures on the basis of race or ethnicity in those cases where race, gender, or ethnicity narrows the possible suspect list in a properly proportional way for the seriousness of the crime or infraction at issue.  Let me explain. 

First, the general principles are (1) it is not bias if the race, gender, or ethnicity of the individual descriptively narrows the search for a suspect to the same degree, under the circumstances, as would any other characteristic, such as a description of clothing or the make and color of a car, or the first three license plate numerals; and (2), more serious (potential) crimes, and/or (potential) crimes with worse consequences or harm, require less descriptive narrowing of the field of possible suspects than do less serious or less harmful (potential) crimes.  And (3) less intrusive or damaging police activities require less descriptive narrowing of the field of possible suspects than to more intrusive or harmful police activities. 

"Descriptive Narrowing"

Descriptive narrowing occurs in any situation or environment where a description makes it sufficiently reasonably likely to apprehend a perpetrator of a crime or planned crime.  For example, if the suspect is known simply to be a "man", that will not be sufficiently narrowing in general to allow police to intrude on all men, but it causes great descriptive narrowing in something like a woman's dormitory.  Similarly, "wearing a Mets' baseball cap will have little descriptive narrowing potential near Shea Stadium on a game day, but it would likely have great descriptive narrowing potential in San Diego in the December.  If the suspect in a robbery in a black neighborhood is known to be white, then that has descriptive narrowing power in that situation.  It might even have far more descriptive narrowing power than would a description of the suspect's height, weight, age, and/or clothes.  Similarly with the description of "young, funky hair, lots of tatoos, and  pierced jewelry" in a retirement village as opposed to at a crowded heavy metal concert. 

Descriptive narrowing makes it more likely under particular conditions that the person fitting the description is the person being sought.  What makes a description narrowing is not just the characteristics described, but the likelihood of those characteristics fitting the guilty person in comparison with the likelihood of their fitting others in that situation or environment.  Hence, a description that is narrowing in one environment may not be narrowing in another.  It is not the description by itself that makes it useful for identifying the likely perpetrator of a crime, but the ability of that description to distinguish the perpetrator from others in a particular environment.  The exception or most special case of this is a description which is so unique that it works to narrow the potential of a person fitting that description in any and every environment, which is presumably what finger prints or DNA samples do, or at least what they are alleged to do. 

But in any given environment, various kinds of descriptions might serve to give descriptive narrowing.  For example, if three suspects were fleeing the scene of a bank robbery and were seen to get on a certain highway with all three of them in the front seat of the car, that would be an important identifying clue, I would think, to any policeman monitoring traffic on that highway from that direction where traffic was relatively sparse and where almost none of the cars had more than two occupants.  But it would not be a helpful clue in a commuter car-pool lane during rush hour in a large city. 

Hence, if an ethnic, racial, or gender description is sufficiently narrowing in a particular circumstance, it ought to be allowed as evidence for probable cause, or as justification, to initiate police activity in regard to a particular individual or group of individuals.  In the kinds of cases cited in the ACLU, and similar, reports above, what makes those cases egregious is that the racial characteristics by themselves do not sufficiently narrow the list of possible perpertrators to warrant stopping or following anyone.  And this is compounded by the fact that, or is particularly true when, there is no known crime or any likely crime for which to investigate anyone in the first place.  There is no reason to stop anyone for driving a luxury car if there are no luxury cars of that make reported stolen and if there is not an ongoing epidemic of luxury car thefts in the area. Or, to put it another way, "driving while black" is not by itself sufficient grounds for police investigation under any normal circumstances or in the kinds of environments where the ACLU cases occurred.  But if, in a nearly all white, mostly middle class environment, there is a report of the theft of a luxury car by a black person, or if there have been such thefts by black suspects over time in this neighborhood, of the relatively few luxury cars owned there, it seems to me that the driver of this particular car in this particular case evokes reasonable suspicion, even if he is innocently and only coincidentally in a place where his characteristics happen to meet a description that is sufficiently narrowing under the circumstances. 

Threat of Crime

The above should be understood to apply not only to a specific crime already committed but to an ongoing pattern of crime, a credible threat or reasonable suspicion of crime, a series of related crimes, or to evidence of a specific planned crime.  As in the above case, if, say, carjackings are being carried out in a retirement community by young, heavily tatooed perpetrators -- even though each carjacking might have different particular perpetrators-- police might have morally justifiable reason to stop and question anyone who fits that description in that community in order to see whether they might be on their way to continue the pattern of crimes. 

"Sufficiently" Descriptively Narrowing and "Proportionally Appropriate"

As with any concept that involves a criteria that lies along a continuum, many cases clearly are included or excluded from the concept, but it is often difficult to judge whether borderline cases meet the criteria or not.  While it is easy to tell the very rich from the very poor, it is not always easy to say whether someone, say, in the 75th percentile ought to be called rich or not.  Similarly, being the only person or one of only a couple of people to fit a description in a given environment, even if that description is otherwise general, clearly makes one highly probable to be the perpetrator sought.  And clearly when a description in a given environment is so general that a great many people in that environment fit it, the description does not sufficiently narrow the probability of finding the perpetrator based on it.  However, it is not clear how far precisely the probability must be narrowed in order to justify suspecting a particular person of (potential) criminal activity.  Within a certain reasonably narrow range of probabilities (depending on the seriousness of the crime and the seriousness of the police intervention), and only within this range of probabilities, this becomes a matter of judgment, experience, subconscious perceptions and deductions, and even to some extent intuition. 

As mentioned in the above sentence parenthetically, there are at least two factors to be considered in judging whether the probability is sufficient for police activity to be warranted.  The greater the seriousness or magnitude of harm of the (potential) crime in question, the less the probability should need to be in order to justify police action.  And the less intrusive or less potentially damaging in any way the particular police action is, the less the probability should need to be to justify it.  In other words, whatever the proper range of probability is to justify police actions against a person who fits any kind of description, whether racial/ethnic or otherwise, that range should be narrowed or expanded commensurate with the seriousness of the crime and with the invasiveness and potential harm of the police actions. 

In other words, if the description fits 100 inhabitants in a particular area, police might be justified in questioning or pursuing all of them in regard to the impending setting off of a weapon of mass destruction, but might not be justified in questioning any of them about the pickpocket theft of a wallet containing only $20 in case. 

And in regard to any particular crime, police would be more justified in something like outside surveillance than in a search of their homes or a phone tap, if they cannot narrow the description of the suspect to fewer than the 100 people. 

In order to be morally justified on the basis of the description (whether ethnic, racial, gender, or otherwise in any way), the seriousness of the police activity should be commensurate with the seriousness of the crime and the probability that the description available in a given environment identifies the alleged perpetrator being sought.  The courts can set those parameters, and probably different courts will have slightly different intuitions for them.  But there is no reason to believe that a merely ethnic, racial, or gender description is always insufficient cause for any police activity at all. 

Ramifications for Security Against Terrorism

In the wake of the magnitude of the Arab and/or Islamic attacks, and threats of (further) attacks on the United States, the above would indicate that in certain environments some police or security activity is justified in being suspicious about at least Arab or Islamic men of a certain age range in certain places.  But the nature and scope of the activity needs to be commensurate with the probability that any such person is an actual terrorist under the circumstances, and also commensurate with the magnitude of the harm that might be caused if they are. 

Finally, one news report stated that the Israeli's say ethnic and racial profiling is inadequate and never as effective as other sorts of airport security measures and attention to specific behaviors -- such as airline ticket buyers' answers to certain questions or avoidance of eye contact, etc.  As with many such news reports, the rationale for the claim is not given, so it is difficult to know whether the indicators the Israelis look for are simply very good at ferreting out (potential) criminals or whether racial/ethnic profiling in the Middle East simply does not narrow the field sufficiently, given the large number and percentage of people that would fit the description. The latter might not be the case in U.S. airports or other sensitive facilities.  Clearly if racial profiling would be ineffective, there is no point in using it, but it is far from clear that it is any less effective in catching or deterring (potential) criminals than would be any non-racial, non-ethnic description, trait, or action which narrows the probability of detecting the actual perpetrator by the same degree. 

This work is available here free, so that those who cannot afford it can still have access to it, and so that no one has to pay before they read something that might not be what they really are seeking.  But if you find it meaningful and helpful and would like to contribute whatever easily affordable amount you feel it is worth, please do do.  I will appreciate it. The button to the right will take you to PayPal where you can make any size donation (of 25 cents or more) you wish, using either your PayPal account or a credit card without a PayPal account.