Racial profiling in law enforcement is the practice of stopping, searching, or arresting a suspect based on racial characteristics on the assumption that members of minority racial or ethnic groups are more likely to commit certain crimes. There is general agreement that race alone cannot be a basis for a stop or search but that race can be considered where one’s race matches a description of a perpetrator. There is sharp division, however, on the question of whether limited use of race should be permitted in the assessment of cause to stop, search, or arrest, and on the appropriate benchmarks for determining whether statistical disparities are explainable by nonracial factors.
Historical Context
Racial profiling is a relatively recent formulation of race-based practices, of which there is a long history in the United States. Slavery, Jim Crow laws, and private acts of racial exclusion and violence, including lynchings, marked almost two centuries of the United States’ history as a nation. Immigration laws have often excluded non-Whites and favored those of European origin. The notorious Palmer Raids, conducted by the U.S. government following World War I in response to isolated acts of terrorism, subjected ethnic and religious minorities to deportation. Perhaps the most notorious act of racial profiling occurred during World War II with the internment of more than 100,000 persons of Japanese descent on the claim that they presented a national security threat. Now regarded as an indefensible policy, this program was upheld by the Supreme Court in Korematsu v. United States (1944).
With the successes of the civil rights movement in the 1960s and 1970s and the country’s turn toward racial equality, there was a growing legal and political consensus that racial profiling was unconstitutional and counterproductive as a law enforcement tool. These practices were strongly criticized by President Bill Clinton, who condemned the practice as morally reprehensible, and by the candidates during the 2000 presidential election campaign. Racial profiling has also been an issue with respect to many other areas of social and economic relationships, including housing, employment, and lending practices; however, these issues are outside the scope of this article.
The Data
The attention to racial profiling in the 1990s was sparked in part by studies that cited the pervasiveness of the phenomenon of driving while Black and related race-based police practices. For example, in New Jersey, litigation and a report by the state’s Attorney General showed that drug interdiction efforts on the New Jersey Turnpike were racially disproportionate. The data showed that 15% of all drivers on the turnpike were African American and that almost all drivers violated traffic laws. Yet 42% of all stops and 73% of all arrests on the turnpike were of African Americans. Significantly, radar stops for speeding (which are race blind) were consistent with the racial driver data, while discretionary stops by troopers were twice as frequent for African Americans. Traffic stop studies in Maryland, Florida, and Illinois found patterns of stops and arrests that were also disproportionate by race.
However, statistical evidence must be carefully analyzed to determine whether racial profiling or other nonracial factors explain any disparities. Factors such as crime rates, police deployment patterns, enforcement priorities, and social and economic factors may explain statistical disparities. Thus, some law enforcement officials and scholars have argued that racially disparate impacts of policing do not reflect intentional race discrimination; rather, they are the function of higher crime rates by African Americans, the legitimate placing of more police in high-crime minority neighborhoods, and the need for aggressive policing where criminal conduct (e.g., drug dealing) is done in public areas, as opposed to private residences or college dorms. Moreover, these tactics are credited by some for the large drop in crime over the past 20 years.
Are these views—that African Americans commit a disproportionate number of crime and therefore that race is a legitimate factor in deciding who of a large number of persons to stop or investigate—consistent with empirical evidence or constitutional doctrine? There is good reason to question both of these assertions. First, in the War on Drugs, studies that track drug possession and usage find scant differences based on race. Furthermore, there is no firm evidence that those who distribute or traffic in illegal drugs are more likely to be African American. The racially disparate stops on the New Jersey Turnpike and on Maryland highways yielded seizures of drugs that were comparable by race, yet far more Black drivers were stopped than White drivers. In some locations, Whites were more likely to be in possession of drugs. Yet 37% of those arrested, 55% of those convicted, and 74% of those incarcerated for drug offenses were Blacks.
Second, there is now evidence of racial profiling in stop and frisk policing. In Floyd v. City of New York, a federal court ruled that the stop and frisk practices of the New York Police Department over the period 2004–2012 were intentionally racially discriminatory. The court found that of the over 4 million stops, minorities were stopped at a rate almost double their population while Whites were stopped at rates less than one third of their population share. Regression analysis that took into account crime rates by race, police deployment, and social and economic factors or differing neighborhoods failed to explain these highly disparate rates. Furthermore, the court cited training and supervision practices that urged officers to focus on Blacks. Similar studies of stop and frisk practices in Los Angeles, Philadelphia, Baltimore, and Chicago have found similar patterns of race-based policing.
The racial profiling debate has also focused on the issue of mass incarceration. As of 2017, with 5% of the world’s population, the United States has 25% of the world’s prisoners, with over 2.2 million inmates being held in U.S. prisons and jails and millions more under parole or probation supervision. This is an increase of over 7 times the number of prisoners as late as the 1970s and far more than any other industrialized country. Black males are 6% of the U.S. population but over 40% of prisoners in the United States; it is estimated that one in every three Black men can expect to serve some time in a jail or prison. Crime rates by race may explain part of the statistical disparities, but many argue that the large disparities are not fully explainable by nonracial factors.
Similarly, the number of Black men killed by police far exceeds their share of the population. The increasing number of video-recorded police shootings and the deadly attacks on police have ignited another racially charged debate on policing. As the governor of Minnesota, Mark Dayton, stated in 2016 after viewing a police shooting, “Would this have happened if the driver and passenger were white? I don’t think it would have” (Swaine, Laughland, & Beckett, 2016). If race is a factor, is it a result of implicit bias, whereby police, like many other people of all races, process information, observations, and reactions through a racial lens, often with some experiences or knowledge that influences their beliefs, with no intent to engage in discriminatory behavior?
Starting after the attacks of September 11, 2001, and with subsequent terrorist attacks in the United States, the debate on racial profiling has become a significant fault line in the U.S. politics and legal system. Those who advocate that special attention, surveillance, and other investigative methods should be focused on Muslims and Islamic communities assert that to do otherwise ignores the fact that so much terrorism is a product of religious and ethnic loyalties and beliefs. Race considerations are urged on the grounds that threats to national security are too great and the relationship between ethnicity and nationality is too strong to ignore. The relationship between terrorism and race and ethnicity is an especially contentious issue, especially in view of terrorist acts by persons of all races, religions, and ethnic backgrounds.
The 2014 U.S. Department of Justice Official Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity provides the following metrics for terrorism and related investigations:
In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree, except that officers may rely on the listed characteristics in a specific suspect description. This prohibition applies even where the use of a listed characteristic might otherwise be lawful.
In conducting all activities other than routine or spontaneous law enforcement activities, Federal law enforcement officers may consider race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity only to the extent that there is trustworthy information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified criminal incident, scheme, or organization, a threat to national or homeland security, a violation of Federal immigration law, or an authorized intelligence activity. In order to rely on a listed characteristic, law enforcement officers must also reasonably believe that the law enforcement, security, or intelligence activity to be undertaken is merited under the totality of the circumstances, such as any temporal exigency and the nature of any potential harm to be averted. This standard applies even where the use of a listed characteristic might otherwise be lawful. (Emphasis added.)
Critics of this distinction make several points. First, terrorists are not from a single ethnic group. Richard Reid, known as the Shoe Bomber for attempting to ignite an explosive device in his shoe while aboard a transatlantic flight in 2001, did not meet this profile, nor did the 1995 Oklahoma City bombers, White supremacists who have targeted African Americans, or those who have killed abortion providers. Second, even if the statistical approach is valid and that most of the terrorism is committed by Islamic fundamentalists, the field of possible suspects is so large that the central problem of racial stereotypes remains. Assume, for example, that 90% of terrorist activity is committed by 100 persons in an ethnic group of 1 million persons. That leaves 99.9% of the group as innocent but still subject to enhanced surveillance, stops, and searches. Others have contended that to the extent a community believes it is unfairly targeted by stereotyped investigations, it may be less willing to cooperate with law enforcement and to provide the intelligence about persons planning criminal acts.
The Constitutional Debate
The U.S. Supreme Court has ruled that stops, searches, and detentions cannot be justified solely by racial factors, but in the immigration context has permitted race or ethnicity as a permissible factor in border patrols and at border checkpoints. The Court has not addressed the constitutionality of racial factors in terrorist investigations, but it is likely that it would permit at least some consideration of race and ethnicity where the racial factor appears to be linked to credible intelligence information. Moreover, the Court has held that the Fourteenth Amendment to the U.S. Constitution forbids only intentional racial discrimination; disparate impact on racial groups of otherwise race-neutral laws is not unconstitutional. Even with respect to claims of intentional discrimination, the Court has imposed high barriers to the use of statistical evidence to prove discrimination. Finally, in Whren v. United States (1996), the Court ruled that pretextual traffic stops (i.e., where the driver committed a traffic violation but was stopped because of his race) did not violate the Fourth Amendment’s proscription on unreasonable searches and seizures, a ruling that has been subject to strong criticism.
The political and legal debate on racial profiling is likely to extend as well to new technologies. In the 21st century, with the advent of big data, social scientists and statisticians have developed complex algorithms to attempt to predict future behavior. These risk assessment tools are being used in the criminal justice system in the setting of pretrial bail, in sentencing proceedings, and in determinations on parole of offenders. These tools are also being used to predict future criminal conduct by geographical locations, community social and economic factors, and past crime patterns. Once again, the issue of bias has been raised: Are any of the predictive factors that are part of the algorithms based on or integrally connected to race?
The United States has a long history of racial conflict and discrimination. It also has a recent history of laws and movements to ensure racial equality. In this process, there is an unresolved issue of the use of race and ethnicity in criminal investigations and especially in the investigation of terrorism. What some denigrate as racial profiling others champion as smart and effective law enforcement. The courts, the legislatures, and the public will continue to debate these issues on legal and moral grounds.
References:
- Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: The New Press.
- Chavis Simmons, K. (2011). Beginning to end racial profiling: Definitive solutions to an elusive problem. Washington and Lee Journal of Civil Rights and Social Justice, 18, 25.
- Gross, S. R., & Livingston, D. (2002). Racial profiling under attack. Columbia Law Review, 102, 1413.
- Harris, D. A. (1999). The stories, the statistics, and the law: Why “Driving While Black” matters. Minnesota Law Review, 84, 265.
- Jost, K. (2013, November 22). Racial profiling. CQ Researcher, 23, 1005–1028.
- Rudovsky, D. (2001). Law enforcement by stereotypes and serendipity: Racial profiling and stops and searches without cause. University of Pennsylvania Journal of Constitutional Law, 3, 296.
- Swaine, J., Laughland, O., & Becket, L. (2016, July 7). Minnesota governor blames Philando Castile police killing on racial bias. The Guardian. Retrieved from https://www.theguardian.com/us-news/2016/jul/07/ philando-castile-police-shooting-calls-justicedepartment-inquiry-fbi-minnesota-officers
- S. Department of Justice. (2014, December). Guidance for federal law enforcement agencies regarding the use of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity. Washington DC: Department of Justice.
Court Cases
- Floyd v. City of New York, 813 F. Supp. 2d 417 (2011).
- Korematsu v. United States, 323 U.S. 214 (1944).
- Whren v. United States, 517 U.S. 806 (1996).