You Can’t Judge a Crook by His Color

In Kansas City, a Drug Enforcement Administration officer stops and questions a young man who has just stepped off a flight from Los Angeles. The officer has focused on this man because intelligence reports indicate that black gangs in L.A. are flooding the Kansas City area with illegal drugs. Young, toughly dressed, and appearing nervous, he paid for his ticket in cash, checked no luggage, brought two carry-on bags, and made a beeline for a taxi when he arrived. Oh, and one other thing: The young man is black. When asked why he decided to question this man, the officer declares that he considered race, along with other factors, because doing so helps him allocate limited time and resources efficiently.

Should we applaud the officer’s conduct? Permit it? Prohibit it? This is not a hypothetical example. Encounters like this take place every day, all over the country, as police battle street crime, drug trafficking, and illegal immigration. And this particular case study happens to be the real-life scenario presented in a federal lawsuit of the early ’90s, United States v. Weaver, in which the 8th U.S. Circuit Court of Appeals upheld the constitutionality of the officer’s action.

“Large groups of our citizens,” the court declared, “should not be regarded by law enforcement officers as presumptively criminal based upon their race.” The court went on to say, however, that “facts are not to be ignored simply because they may be unpleasant.” According to the court, the circumstances were such that the young man’s race, considered in conjunction with other signals, was a legitimate factor in the decision to approach and ultimately detain him. “We wish it were otherwise,” the court maintained, “but we take the facts as they are presented to us, not as we would like them to be.” Other courts have agreed that the Constitution does not prohibit police from considering race, as long as they do so for bona fide purposes of law enforcement (not racial harassment) and as long as it is only one of several factors.

These decisions have been welcome news to the many law enforcement officials who consider what has come to be known as racial profiling an essential weapon in the war on crime. They maintain that, in areas where young African American males commit a disproportionate number of the street crimes, the cops are justified in scrutinizing that sector of the population more closely than others–just as they are generally justified in scrutinizing men more closely than they do women.

As Bernard Parks, chief of the Los Angeles Police Department, explained to Jeffrey Goldberg of The New York Times Magazine: “We have an issue of violent crime against jewelry salespeople. . . . The predominant suspects are Colombians. We don’t find Mexican Americans, or blacks, or other immigrants. It’s a collection of several hundred Colombians who commit this crime. If you see six in a car in front of the Jewelry Mart, and they’re waiting and watching people with briefcases, should we play the percentages and follow them? It’s common sense.”

Cops like Parks say that racial profiling is a sensible, statistically based tool. Profiling lowers the cost of obtaining and processing crime information, which in turn lowers the overall cost of doing the business of policing. And the fact that a number of cops who support racial profiling are black, including Parks, buttresses claims that the practice isn’t motivated by bigotry. Indeed, these police officers note that racial profiling is race-neutral in that it can be applied to persons of all races, depending on the circumstances. In predominantly black neighborhoods in which white people stick out (as potential drug customers or racist hooligans, for example), whiteness can become part of a profile. In the southwestern United States, where Latinos often traffic in illegal immigrants, apparent Latin American ancestry can become part of a profile.

But the defenders of racial profiling are wrong. Ever since the Black and Latino Caucus of the New Jersey Legislature held a series of hearings, complete with testimony from victims of what they claimed was the New Jersey state police force’s overly aggressive racial profiling, the air has been thick with public denunciations of the practice. In June 1999, at a forum organized by the Justice Department on racial problems in law enforcement, President Clinton condemned racial profiling as a “morally indefensible, deeply corrosive practice.” Vice President Al Gore has promised that, if he is elected president, he will see to it that the first civil rights act of the new century would end racial profiling. His rival for the Democratic nomination, Bill Bradley, has countered that Gore should prepare an executive order and ask the president to sign it now.

Unfortunately, though, many who condemn racial profiling do so without really thinking the issue through. One common complaint is that using race (say, blackness) as one factor in selecting surveillance targets is fundamentally racist. But selectivity of this sort can be defended on nonracist grounds. “There is nothing more painful to me at this stage in my life,” Jesse Jackson said in 1993, “than to walk down the street and hear footsteps and start to think about robbery and then look around and see somebody white and feel relieved.” Jackson was relieved not because he dislikes black people, but because he estimated that he stood a somewhat greater risk of being robbed by a black person than by a white person. Statistics confirm that African Americans–particularly young black men–commit a dramatically disproportionate share of street crime in the United States. This is a sociological fact, not a figment of a racist media (or police) imagination. In recent years, victims report blacks as perpetrators of around 25 percent of violent crimes, although blacks constitute only about 12 percent of the nation’s population.

So, if racial profiling isn’t bigoted, and if the empirical claim upon which the practice rests is sound, why is it wrong?

Racial distinctions are and should be different from other lines of social stratification. That is why, since the civil rights revolution of the 1960s, courts have typically ruled–based on the 14th Amendment’s equal protection clause–that mere reasonableness is an insufficient justification for officials to discriminate on racial grounds. In such cases, courts have generally insisted on applying “strict scrutiny”–the most intense level of judicial review–to government actions. Under this tough standard, the use of race in governmental decision making may be upheld only if it serves a compelling government objective and only if it is “narrowly tailored” to advance that objective.

A disturbing feature of this debate is that many people, including judges, are suggesting that decisions based on racial distinctions do not constitute unlawful racial discrimination–as long as race is not the only reason a person was treated objectionably. The court that upheld the DEA agent’s action at the Kansas City airport, for instance, declined to describe it as racially discriminatory and thus evaded strict scrutiny.

But racially discriminatory decisions typically stem from mixed motives. For example, an employer who prefers white candidates to black candidates–except for those black candidates with superior experience and test scores–is engaging in racial discrimination, even though race is not the only factor he considers (since he selects black superstars). In some cases, race is a marginal factor; in others it is the only factor. The distinction may have a bearing on the moral or logical justification, but taking race into account at all means engaging in discrimination.

Because both law and morality discourage racial discrimination, proponents should persuade the public that racial profiling is justifiable. Instead, they frequently neglect its costs and minimize the extent to which it adds to the resentment blacks feel toward the law enforcement establishment. When O.J. Simpson was acquitted, many recognized the danger of a large sector of Americans feeling cynical and angry toward the system. Such alienation creates witnesses who fail to cooperate with police, citizens who view prosecutors as the enemy, lawyers who disdain the rules they have sworn to uphold, and jurors who yearn to get even with a system that has, in their eyes, consistently mistreated them. Racial profiling helps keep this pool of accumulated rage filled to the brim.

The courts have not been sufficiently mindful of this risk. In rejecting a 1976 constitutional challenge that accused U.S. Border Patrol officers in California of selecting cars for inspection partly on the basis of drivers’ apparent Mexican ancestry, the Supreme Court noted in part that, of the motorists passing the checkpoint, fewer than 1 percent were stopped. It also noted that, of the 820 vehicles inspected during the period in question, roughly 20 percent contained illegal aliens.

Justice William J. Brennan dissented, however, saying the Court did not indicate the ancestral makeup of all the persons the Border Patrol stopped. It is likely that many of the innocent people who were questioned were of apparent Mexican ancestry who then had to prove their obedience to the law just because others of the same ethnic background have broken laws in the past.

The practice of racial profiling undercuts a good idea that needs more support from both society and the law: Individuals should be judged by public authorities on the basis of their own conduct and not on the basis of racial generalization. Race-dependent policing retards the development of bias-free thinking; indeed, it encourages the opposite.

What about the fact that in some communities people associated with a given racial group commit a disproportionately large number of crimes? Our commitment to a just social order should prompt us to end racial profiling even if the generalizations on which the technique is based are supported by empirical evidence. This is not as risky as it may sound. There are actually many contexts in which the law properly enjoins us to forswear playing racial odds even when doing so would advance legitimate goals.

For example, public opinion surveys have established that blacks distrust law enforcement more than whites. Thus, it would be rational–and not necessarily racist–for a prosecutor to use ethnic origin as a factor in excluding black potential jurors. Fortunately, the Supreme Court has outlawed racial discrimination of this sort. And because demographics show that in the United States, whites tend to live longer than blacks, it would be perfectly rational for insurers to charge blacks higher life-insurance premiums. Fortunately, the law forbids that, too.

The point here is that racial equality, like all good things in life, costs something. Politicians suggest that all Americans need to do in order to attain racial justice is forswear bigotry. But they must also demand equal treatment before the law even when unequal treatment is defensible in the name of nonracist goals–and even when their effort will be costly.

Since abandoning racial profiling would make policing more expensive and perhaps less effective, those of us who oppose it must advocate a responsible alternative. Mine is simply to spend more money on other means of enforcement–and then spread the cost on some nonracial basis. One way to do that would be to hire more police officers. Another way would be to subject everyone to closer surveillance. A benefit of the second option would be to acquaint more whites with the burden of police intrusion, which might prompt more of them to insist on limiting police power. As it stands now, the burden is unfairly placed on minorities–imposing on Mexican Americans, blacks, and others a special kind of tax for the war against illegal immigration, drugs, and other crimes. The racial element of that tax should be repealed.

I’m not saying that police should never be able to use race as a guideline. If a young white man with blue hair robs me, the police should certainly be able to use a description of the perpetrator’s race. In this situation, though, whiteness is a trait linked to a particular person with respect to a particular incident. It is not a free-floating accusation that hovers over young white men practically all the time–which is the predicament young black men currently face. Nor am I saying that race could never be legitimately relied upon as a signal of increased danger. In an extraordinary circumstance in which plausible alternatives appear to be absent, officials might need to resort to racial profiling. This is a far cry from routine profiling that is subjected to little scrutiny.

Now that racial profiling is a hot issue, the prospects for policy change have improved. President Clinton directed federal law enforcement agencies to determine the extent to which their officers focus on individuals on the basis of race. The Customs Service is rethinking its practice of using ethnicity or nationality as a basis for selecting subjects for investigation. The Federal Aviation Administration has been re-evaluating its recommended security procedures; it wants the airlines to combat terrorism with computer profiling, which is purportedly less race-based than random checks by airport personnel. Unfortunately, though, a minefield of complexity lies beneath these options. Unless we understand the complexities, this opportunity will be wasted.

To protect ourselves against race-based policing requires no real confrontation with the status quo, because hardly anyone defends police surveillance triggered solely by race. Much of the talk about police “targeting” suspects on the basis of race is, in this sense, misguided and harmful. It diverts attention to a side issue. Another danger is the threat of demagoguery through oversimplification. When politicians talk about “racial profiling,” we must insist that they define precisely what they mean. Evasion–putting off hard decisions under the guise of needing more information–is also a danger.

Even if routine racial profiling is prohibited, the practice will not cease quickly. An officer who makes a given decision partly on a racial basis is unlikely to acknowledge having done so, and supervisors and judges are loath to reject officers’ statements. Nevertheless, it would be helpful for President Clinton to initiate a strict anti-discrimination directive to send a signal to conscientious, law-abiding officers that there are certain criteria they ought not use.

To be sure, creating a norm that can’t be fully enforced isn’t ideal, but it might encourage us all to work toward closing the gap between our laws and the conduct of public authorities. A new rule prohibiting racial profiling might be made to be broken, but it could set a new standard for legitimate government.

See the related article “Right Place, Wrong Face.”

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