IX. Four Salient Issues in Racial Profiling
A. The Legitimacy of Suspicion
For practitioners, the validity of the component of race rests upon personal experience and upon the evidence of aggregate crime statistics. The police arguments rest upon two separate but related features of police deployment. The first is accumulated personal and vicarious experience, in which minority offenders play major roles. The second is arrest statistics, the collective construct that is the cumulative result of individual decisions by police across the nation, over time.
Officers assert a claim for a “police intuition”—essentially an accumulated knowledge of subtle behavioral cues that operates below the conscious threshold—that properly targets criminals. In this view, the fact that those who draw police attention are members of one or another minority is incidental to their demeanor and behavior, and irrelevant to the police decision to focus on them.
A second component of the argument is essentially defensive, made by officers who work in districts heavily populated by minority groups. Their point—which is valid at the individual level—is that the vast majority of individuals with whom they have contact during the day are residents and visitors who are minorities. To apply the template used in the highway studies to local police work, they argue, unfairly paints officers as racist because the “disproportionate” number of minorities they stop reflects the area rather than police decision making. Such comparisons are valid only in areas where there are significant opportunities to choose between minority and nonminority persons to stop. The argument is particularly acute in minority-populated areas, because minority-status victims are frequently the complainants in the cases police investigate: The police are incensed by accusations of racism when they are in fact defending the interests of law-abiding minority citizens.
A variant objection by the police is the “hours of darkness” defense. This assertion denies that officers can have knowledge of a driver’s race when they pull up behind a car during the nighttime. While intuitively logical, the defense has been countered on several levels. In the Soto case, a practice called “spotlighting” revealed the race of turnpike drivers: Parking a cruiser perpendicular to the road, with the high beams and spotlight on, created a zone of light that permitted the troopers to identify the race of the driver despite the brevity of illumination (the practice was independently examined by the New Jersey Attorney General’s office and was confirmed). On city streets, vehicles passing through intersections provide a comparable opportunity.
In the context of local policing, vehicle models, vehicle condition, and personal adornments (bumper and window stickers, certain styles of air fresheners, and other ephemera) are correlated strongly enough with specific groups to provide proxy identifications in lieu of visual confirmation. They provide no probable cause, but serve to draw the attention of officers; probable cause for a pretext stop likely would soon follow, given the many possible infractions of the expansive motor vehicle code.
Different sets of proxy identifications exist for pedestrian stops at night, where slower speed and ambient light allow for the observation of race, bearing, and other factors. This is especially salient when the police are looking for a suspect who fits “The Description”—often an African American male of medium build, undetermined age, and dressed in a style common to hundreds of residents of the area.
2. Crime Statistics
Supporters of police profiling efforts point to the disproportionate presence of African American males in arrest, conviction, and imprisonment statistics. Those facts are presented as proof that the police properly focus their enforcement efforts on groups that demonstrate a greater propensity for crime. A corollary argument points to the racially homogeneous character of high-level drug gangs—from Jamaican posses to MS-13, from the Nicky Barnes organization to the Crips and Bloods—as a valid rationale for the police to focus on ethnicity or race in directing their drug- and crime-suppression efforts.
Opponents point to several flaws in the assertions that crime is a product of group characteristics. The history of racial prejudice created situations of real disadvantage: The arrest statistics and other perceptions of crime are more a reflection of class distinctions than group tendencies (see, e.g., Stark, 1987). Further, the fact that the upper echelons of a gang or criminal enterprise are of a common racial or ethnic heritage does not generalize their criminality to all who share their skin color or ethnicity.
In this view, both the police experiences and the criminal statistics reflect the impact of larger social forces rooted in America’s sordid history of slavery, Jim Crow laws, and racial segregation. Despite the tremendous gains made by the civil rights movement, race-based isolation continues to be a factor for substantial numbers of African Americans. Isolation by geography—whether based in Jim Crow segregation or the economic necessity of living in public housing—has had a negative influence on the employment and educational opportunities of the African American and Hispanic immigrant communities.
Economic necessity compels residents of many urban neighborhoods to participate in their area’s underground economy, even if they have a stable job and home life (Venkatesh, 2006); a large segment of that underground economy revolves around the drug trade. Street-level drug dealing has a relatively low capital entry threshold, and provides a reward structure far greater than comparable accessible legitimate employment. It is also a highly visible activity, more likely to come to police attention than corresponding drug trafficking in the suburbs.