Racial Profiling

C. Balance of Harms

American law is more tolerant of intrusive state action when the harm to be averted is great. Lower-level violations of the law are tolerated, if tacitly, by the rules of criminal procedure that erect barriers to their discovery. Though the Supreme Court has expanded police powers in the cases of Atwater v. Lago Vista (2001) (permitting custodial arrest for conduct normally subject only to a citation) and Whren et al. v. United States (1996) (allowing the use of the pretext stop), the presumption of innocence remains a bedrock procedural right for American citizens.

Americans have a reduced expectation of privacy when driving a vehicle in public space, or when walking off their property. Nevertheless, a presumption of privacy remains, to be overcome only by an articulable danger to the public peace. Judicial tolerance of the consent search for drugs is one of the central questions in the racial profiling debate.

The original drug courier profile had a narrowly targeted objective: Intercept bulk shipments of illegal drugs in transit, before they could be cut and distributed to the public. That profile arose from a specific fact pattern, closely matching observable characteristics with searches that found bulk drugs.

Preventing illegal drugs from reaching the street has far more protective value to the public weal than a seizure of post-market, individual-use drugs. Post-market seizures occur only after the drugs have been distributed, and the profits returned to the middle-persons and the kingpins of the drug trade. The harm to the individual, and to society as a result of the individual’s drug-induced actions, is much smaller than the aggregate of such harms embodied in the bulk shipment. They are also more hypothetical at the individual level, insofar as recreational drug use is not inevitably a cause of further criminality.

The contemporary debates embodying the “hit rate” hypothesis reflect an operational change from the bulk drug courier profile to a broader “anyone carrying illegal drugs” foundation. That is a methodological convenience, in part: Many drivers and passengers carry small amounts of drugs for personal use; relatively few are involved in transporting pre-market bulk drugs. The numbers demanded by social science hypothesis testing can only be achieved by expanding the focus to personal-use quantities, at a sacrifice of the greater harms presented by drug couriers.

As profiling shifts to other areas of criminal conduct, the public interest in deterring harm also changes. Preventing mass casualty events like those of the September 11, 2001, attacks obviously meets the test of great social harm. However, when the harm remains hypothetical, unsupported by articulable facts and conditions, the “harm” argument alone is insufficient to justify governmental intrusion. Advances in technology will continue to test the proposition, particularly as data-mining techniques draw conclusions from the electronic traces of everyday activity.

D. Precision of Application

More important to the populations at risk is the degree of precision with which police employ the drug courier profile. The epithet “racial profiling” embodies a belief that the profile itself is merely a sham, providing faux legitimacy for decisions that are actually based upon racial prejudice.

Profiles are like fingerprints: They are composites of particular characteristics which, taken collectively, provide enhanced confidence of an identification. For fingerprints, that identification is of a known individual matched to an unknown sample (the latent print). In criminal profiles, it is identification of the behaviors or characteristics as indicative of probable criminal behaviors. In both cases, the greater the number of matches, the greater confidence can be had in the identification.

The public outcry against racial profiling is embodied in numerous testimonial cases, in which the only characteristic the individual stopped by the police shared with the drug courier profile was that of race. Such evidence is not collected on a scientific basis, but its cumulative weight creates a viable presumption. Though there have been inquiries into public perceptions of racial profiling, a viable study of persons stopped and released as a result of profiling activities has yet to be published.

At least one court case examined the profile itself: the 1993 Colorado case of Whitfield v. Board of County Commissioners of Eagle County. In a case involving a highway vehicle stop based solely upon a drug courier profile, the court dissected the profile point by point, finding no correlation to criminality of the various components (rental car, out-of-state plates in an area heavily dependent upon tourism, radar detector, tinted windows, and so forth). The court then concluded that the only remaining variable was the driver’s race, which was inadmissible. Examining each individual variable in the profile, rather than the collective weight of all the components, is an unusual approach, but the evidence of the resulting search was nevertheless suppressed.

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