Portal de Periódicos da CAPES

Racial Profiling

2004; Wiley; Volume: 32; Issue: 2 Linguagem: Inglês

10.1111/j.1088-4963.2004.00009.x

1088-4963

Mathias Risse, Richard Zeckhauser,

Regulation and Compliance Studies

I.1. Although, or perhaps because, racial profiling is a matter of great concern in the United States and elsewhere, there is little philosophical reflection on this subject.11 There are exceptions: There is a debate started by Michael Levin, “Responses to Race Differences in Crime,”Journal of Social Philosophy 23 (1992): 5–29, and Laurence Thomas, “Statistical Badness,”Journal of Social Philosophy 23 (1992): 30–41, which includes Jonathan Adler, “Crime Rates by Race and Causal Relevance: A Response to Levin,”Journal of Social Philosophy 24 (1993): 176–84; J. Angelo Corlette, “Racism and Affirmative Action,”Journal of Social Philosophy 24 (1993): 163–75; Chana B. Cox, “On Michael Levin's ‘Response to Race Differences in Crime’,”Journal of Social Philosophy 24 (1993): 155–60; and Louis Pojman, “Race and Crime: A Response to Michael Levin and Lawrence Thomas,”Journal of Social Philosophy 24 (1993): 152–54; and a reply by Michael Levin, “Reply to Adler, Cox, and Corlett,”Journal of Social Philosophy 25 (1994): 5–20. This discussion addresses response to black crime, rather than profiling in particular. Second, there are the contributions by David Wasserman, “Racial Generalizations and Police Discretion,” in Handled with Discretion: Ethical Issues in Police Decision Making, ed. John Kleinig (New York: Rowman and Littlefield, 1996); Howard McGary, “Police Discretion and Discrimination,” in Kleinig, pp. 131–44; and Arthur Applbaum, “Racial Generalizations, Police Discretion, and Bayesian Contractualism,” in Kleinig, pp. 145–57. Legal scholarship is more extensive. See Samuel Gross and Debra Livingston, “Racial Profiling Under Attack,”Columbia Law Review 102 (2002): 1413–38; and Peter Schuck, “A Case for Profiling,”The American Lawyer January (2002): 59–61, for law-oriented views on moral concerns about profiling. The goal of this article 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. Second, we assume that given this tendency, police can curb crime if they stop, search, or investigate members of such groups differentially. That is, we assume that such measures eliminate more crime than do other measures for equivalent disruption and expenditures of resources.22 (1) For an empirical discussion of the correlation between membership in certain racial groups and the tendency to commit certain crimes, cf. Janet Lauritsen and and Robert Sampson, “Minorities, Crime, and Criminal Justice,” pp. 30–56 in Oxford Handbook on Crime and Punishment, ed. Michael Tonry (Oxford: Oxford University Press, 1998) and references therein. See also the appendix of Glenn Loury, The Anatomy of Racial Inequality (Cambridge, Mass.: Harvard University Press, 2002); the homepage of the U.S. Department of Justice; and the homepage of the Racial Profiling Data Collection Resource Center at Northeastern University at http://www.racialprofilinganalysis.neu.edu/index.php. (2) Our assumptions are, of course, controversial. For instance, the Boston Globe, Metro/Region section, p. 1, reported on January 6, 2003, that police officers in Massachusetts are far more likely to search the car of a black or Hispanic driver pulled over for a traffic violation than the car of a white driver, but that whites are more likely to face drug charges following such searches. Are the police better able to identify white offenders, or white drivers more likely to possess drugs? If statistics showed that white drivers were more likely to possess drugs, then, if profiling is to reduce crime, it should target whites. (3) Our second assumption does not simply follow from the first. For example, stopping and searching individuals may not be effective in preventing crime. Or, while race is correlated with forms of crime, much of its predictive value may be carried by other factors. So in this case the second assumption fails although the first holds. If so, profiling is pointless, and there is no moral justification for it. Conversely, the second assumption may apply, although the first is violated. This happens if criminals in Group X are more easily detected though they are no more common than those in Group Y. Our argument must be reconsidered under such situations, which we believe will be empirical exceptions. Much of our argument will then at least be much weaker. So we will indeed assume that both conditions hold. If either of these assumptions fails, the question addressed in this article no longer arises. 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. 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. Nonconsequentialist 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.33 To keep this approach manageable, we only discuss the utilitarian stance and several nonconsequentialist considerations. We do not consider a welfare-egalitarian approach, a consequentialist approach conceiving of the good in terms other than well-being, or other approaches. While this leaves our account subject to revisions, we believe we have included at least the most salient viewpoints in this debate. If the recommendations of these standpoints differ, however, foundational considerations will be required to reach a verdict. In a nutshell, our central points are these: First, in a range of plausible cases, the utilitarian argument (which depends on circumstances and draws on empirical considerations that may be hard to verify) supports police and security measures that make race a consideration in deciding whom to stop, search, or investigate. We propose a way in which utilitarians should think about relevant costs and benefits that will lead to this conclusion. Second, under conditions to be specified, the use of race in police tactics is neither unfair nor does it violate any moral rights. 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 nonconsequentialist objections to profiling are, and are not, telling. The question “Do you support racial profiling?” has no answer that is both unqualified and philosophically defensible. 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 article 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.44 (1) An example is David Harris, “Driving While African-American: Racial Profiling on Our Nation's Highways,”American Civil Liberties Union Special Report, 1999. The report is about “racial profiling,” but it discusses the second and third issues only. Obviously, these two issues constitute enormous problems. (For instance, David Harris, “The Stories, the Statistics, and the Law: Why ‘Driving While African-American’ Matters,”Minnesota Law Review 84 (1999): 265–326, concludes: “It is virtually impossible to find African-American people who do not feel that they have experienced racial profiling.”) Nevertheless, it is important to keep the relevant discussions apart. (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. Frederick Schauer's Profiles, Probabilities, and Stereotypes addresses the broader issues. (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. We discuss these three issues, but central conclusions take racial profiling to be the use of race as an information-carrier for investigations. II.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.55 (1) Ira Glasser, “Speech: American Drug Laws: The New Jim Crow. The 1999 Edward C. Sobota Lecture,”Albany Law Review 63 (2000): 703–24, compares profiling with Jim Crow and the internment of Japanese Americans during World War II. Cornel West, Race Matters (New York City: Beacon Press, 2001), p. xv, lists examples of lingering white supremacy, mentioning profiling alongside drug convictions and executions. Bill Clinton described racial profiling as a “morally indefensible, deeply corrosive practice” (“Clinton Order Targets Racial Profiling,” Associated Press, June 9, 1999). (2) The relevant (and much debated) constitutional questions turn on the Fourth Amendment (banning “unreasonable searches and seizures”) and the Equal Protection Clause of the Fourteenth Amendment. However, our concern is with moral issues, not constitutional interpretation. For legal issues, cf. Richard Banks, “Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse,”UCLA Law Review 48 (2001): 1075–124; Sheri Lynn Johnson, “Race and the Decision to Detain a Subject,”Yale Law Journal 93 (1983): 214–58; Tracey Maclin, “Race and the Fourth Amendment,”Vanderbilt Law Review 51 (1998): 333–93; Katheryn K. Russell, “Racial Profiling: A Status Report of the Legal, Legislative, and Empirical Literature,”Rutgers Race and Law Review 3 (2001): 61–81; D. J. Silton, “U.S. Prisons and Racial Profiling: A Covertly Racist Nation Rides a Vicious Cycle,”Law and Inequality Journal 20 (2002): 53–90; William J. Stuntz, “Terry and Legal Theory: Terry's Impossibility,”St. John's Law Review 72 (1998): 1213–29; Anthony C. Thompson, “Stopping the Usual Suspects: Race and the Fourth Amendment,”New York University Law Review 74 (1999): 956–1013; see also Jerome H. Skolnick and Abigail Caplovitz, “Guns, Drugs, and Profiling: Ways to Target Guns and Minimize Racial Profiling,”Arizona Law Review 43 (2001): 413–37. 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 debates: the first is about the correlation between race, crime, and the effectiveness of profiling; the second about legal aspects; and the third about the moral aspects. Showing why this supposition is false is one task of our analysis. We do not think that our discussion of profiling bears directly on the permissibility of the use of race in other areas (e.g., employment discrimination). 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 II identifies the defining characteristics of racial profiling. Section III elaborates the distinctions between profiling, police abuse, and the disproportionate use of race in screening. Such “stage-setting” is essential: there are no useful distinctions in place that we can enlist. Readers who have thought a great deal about profiling may wish to skim these sections. Section IV explores the utilitarian argument. While many people tend to think that utilitarian arguments support profiling, we begin by exploring a utilitarian argument against profiling and explore its limitations. Section V takes up nonconsequentialist arguments. Section VI outlines the argument that profiling may be in the interest of the African American community. While we endorse that argument only with qualifications, it bears importantly on our discussion of one nonconsequentialist objection in Section V. Section VII concludes. II.1. The term racial profiling, which was introduced to criticize abusive police practices, carries connotations of illegitimacy.66 Cf. Samuel Gross and David Livingston, “Racial Profiling Under Attack,”Columbia Law Review 102 (2002): 1413–38, p. 1426 (in particular n. 53). Thus, to explore profiling without definitional bias, we must assess how to understand the practice, and how to keep it distinct from other issues. In a typical approach, Ramirez et al. 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.”77 D. Ramirez, J. McDevitt, and A. Farrell, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned, Report prepared by Northeastern University with support by the U.S. Department of Justice, 2000. This definition captures a pre-theoretical notion many people have, and so we start with it. Our definition will differ from this one in a manner that facilitates normative inquiry. Crucially, this definition contrasts (a) the use of race, ethnicity, or national origin with (b) the use of an individual's behavior or information that helps apprehend someone who has been identified as being, or having been, engaged in criminal activity. So profiling relies on (a) rather than (b). Including this contrast in the definition raises two problems. First, (a) mentions a feature of investigative methods, namely, the use of race, ethnicity, and so forth, whereas (b) mentions both a feature of investigative methods (“rely on information pertaining to individuals”) and the goal of such investigations, apprehending criminals. Thus contrasting (a) and (b) suggests that profiling serves purposes other than apprehending criminals, imparting an aura of illegitimacy to profiling by definition. Second, writing that contrast into the definition suggests that either one uses race, ethnicity, and so on, or one uses specific information on suspicious activity, namely information about an individual's behavior or information that leads to an individual. 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 percent of blacks but only 20 percent 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.”88 Compare another definition of profiling: Richard Banks, “Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse,”UCLA Law Review 48 (2001): 1077, 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.” Just like Ramirez et al., 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? There is no way to know. Gross and Livingston, p. 1415, 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.” Defining profiling by drawing on individual officers’ beliefs is peculiar. What if officers disagree with official policies, but happen to implement them? 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. We ask: Are such actions justified under circumstances that might plausibly arise? We believe they are, but our definition alone does not suggest this. II.2. We need to specify the focus of our discussion with our definition of profiling in mind. Three paradigmatic cases of profiling help us proceed. The first paradigmatic case consists of measures employing race and ethnicity that seek to apprehend individuals who have committed specific crimes.99 Ramirez et al. and Gross and Livingston do not count such police actions as profiling. One example is the search for the Washington, D.C.-area sniper in 2002. The second includes racial, ethnic, or nationality screening at airports, widely discussed in the wake of the Al Qaeda terrorist attacks of September 11, 2001, at the World Trade Center, in Pennsylvania, and the Pentagon (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. Rather, it is used because there exists a salient threat (hijacking), and it is deemed excessively expensive to search all passengers. Screening is used as a routine measure to apprehend or deter individuals who may be planning the relevant crimes, and to reassure legitimate passengers. 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. In such cases, the search is not meant to apprehend individuals wanted for specific crimes just committed, nor is it part of a routine that everyone engaged in certain activities can expect. In contrast, such searches are disruptive and troubling, and individuals cannot integrate them into their routine. These three paradigmatic cases differ in the extent to which a crime or a threat is immediate, the extent to which security measures can be expected, and the magnitude of the imposition. Profiling is 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.1010 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. Our argument mostly 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. To the extent that it can, it will be justified a fortiori in other cases. Someone claiming that profiling is justified in the first or second but not in the third would need to argue for that determination. This article addresses the routine use of profiling for the prosecution, identification, and prevention of crimes. III.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 excessive and 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. The following widely cited cases are typical of the sort of case at the “rude or demeaning” end of the spectrum:1111 We take these examples from Ramirez et al., but all three are widely quoted. Cf. also Harris, “Driving While African-American,” for a long list of such cases. “Driving in the wrong car.” Dr. Elmo Randolph, an African American dentist, commutes from Bergen County to his office near Newark, New Jersey. Between 1991 and 2000, state troopers stopped him more than fifty times. Randolph claims that he does not drive at excessive speeds and that he has never been issued a ticket. Instead, troopers approach his gold BMW, request his license and registration, and ask if he has any drugs or weapons in his car. “Traveling in the wrong neighborhood.” Police stop African Americans traveling through predominately white areas because the police believe that they do not “belong” there and may be engaged in criminal activity. This type of profiling was reported by Alvin Penn, the African American deputy president of the Connecticut State Senate. In 1996, a Trumbull, Connecticut, police officer stopped Penn as he drove through this predominately white town. After reviewing Penn's license and registration, the officer asked Penn if he knew which town he was in. (Bridgeport, where African Americans and Latinos comprise 75 percent of the population, borders Trumbull, which is 98 percent white.) Penn asked why he needed to know this. The officer told him he was not required to give Penn a reason for the stop and that, if Penn made an issue of it, he would cite him for speeding. “Petty traffic violations.” Petty traffic violations include under-inflated tires, failure to signal before switching lanes, or speeding less than 10 miles above the limit. Consider the case of Robert Wilkins, a public defender in Washington, D.C., who went to a funeral in Ohio in 1992. For the return trip, he and some relatives rented a Cadillac. They were stopped for speeding in Maryland while driving 60 in a 55-mph zone. The group was forced to stand in the rain for an extended period while officers and drug-sniffing dogs searched their car. Nothing was found. The officers in the Wilkins and Penn cases were abusive, while Randolph's is clearly extreme as far as the number of stops is concerned. While it is hard to obtain data quantifying the frequency and severity of abuse, police abuse must be rectified independently. The problem is urgent. Possible measures include continued training, intensified supervision (e.g., videotaping police–civilian encounters), and stiff punishment for abusers. 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 that have different remedies.1212 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. (For example, both minorities and police are “repeat players”; they encounter each other frequently and thus their interactions are shaped by sentiments acquired in past encounters.) (4) Police abuse may help stimulate some of the activities that profiling is intending to reduce. (The perception of the police as a hostile force may increase one's willingness to commit certain crimes.) (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. We do not take a view on whether, or how often, (3), (4), and (5) are true. III.2. The “disproportionate” investigation of minorities also tends to be conflated with profiling. Two ideas of proportionality are relevant: proportionality vis-à-vis the goals of the investigation, and proportionality as fairness. In the first, a group will be investigated disproportionately if its members are screened more (or less) than is useful for the investigation. In the second, investigation will be disproportionate if fairness, say, in the distribution of burdens, is violated. Profiling ignites indignation since it affects minorities “disproportionately,” but it is not always clear which sense of proportionality is meant.1313 Banks, 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.” It is unclear which sense of “disproportionate” Banks has in mind. When discussing the disproportionate screening of minorities, we mean the sense of proportionality relative to the goal of the investigation. Individuals have a legitimate complaint if profiling occurs in a manner disproportionate to those goals. Yet it is often hard to say what counts as disproportionate in that sense. One reasonable goal is to pursue the strategy that catches the most criminals per individual screened. Say eyewitness testimony suggests that there is a 60 percent chance that a crime was committed by an African American man, and African American males make up 25 percent of the population; one should then inspect only African American males, and mutatis mutandis for other scenarios. The reason is that an African American male is 2.4=60% / 25% times as likely to be guilty as a person selected at random.1414 It is not the likelihood that the criminal is from a particular group that determines the expected payoff per person searched. It is that likelihood divided by the proportion of that group in the population. Suppose we know that 10 percent of a group of individuals engages in an illegal activity, but only 5 percent of the population at large does so. Targeting all inspections to the high-risk group, as opposed to the general population, doubles the number of criminals caught per inspection made.1515 Critics often do not think of disproportionately vis-à-vis the goals of the investigation when complaining that minorities are affected disproportionately by such measures. Proportionality as fairness appears in Section V, when we discuss nonconsequentialist objections to profiling. One idea of proportionality motivated by fairness is that, should members of a group G commit, say, 40 percent of the relevant crimes, 40 percent of the searches be targeted towards members of G. The discussion beginning in the next paragraph shows why this suggestion does not capture an idea of proportionality vis-à-vis the goals of the investigation. The same is true for the proposal that, if 40 percent of the inhabitants of a certain area belong to G, then 40 percent 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. However, even if we are concerned only with efficiency, this “target-the-most-likely” strategy fails. Deterrence is also a concern. If the police investigated only the most likely perpetrators, others (“unlikelies”) would get a “free crime.” For instance, in implementing antiterrorism measures, we cannot merely inspect the most likely group, since terrorists would redouble efforts to recruit people from untargeted groups. (Recall the “shoe-bomber.”) The efficient screening procedure—the optimal mix across groups, and thus the one that involves proportionate screening in the sense intended—takes into account det