Recently, the concept of racial profiling has expanded beyond its original framework to include anti-terror activities and immigration law enforcement, as well as scrutiny by private security in shopping malls and other venues. Scientific inquiry intended to confirm or refute the existence of bias has a wide range of methodological difficulties, and studies to date have produced mixed empirical evidence.
II. Two Perspectives on Racial Profiling
III. Disparity or Discrimination?
IV. Profiling Generally
V. Basic Legal Foundations
VI. General History of Racial Profiling
VII. Contemporary History of Racial Profiling
VIII. The Flagship Cases in Racial Profiling
IX. Four Salient Issues in Racial Profiling
A. The Legitimacy of Suspicion
B. Scientific Proof
C. Balance of Harms
D. Precision of Application
X. Research on Racial Profiling
XI. Conclusion and Bibliography
Racial profiling is a disputed term, embodying either a pernicious police practice or an intelligent application of police investigative skills, depending upon ideological perspective. It is most commonly understood in the former context, a shorthand for unfair police targeting of persons of minority groups for greater scrutiny and intervention, based solely upon the belief that members of their ethnic group are more inclined to engage in criminal activity. The contemporary term has a specific history anchored in drug interdiction efforts (Buerger & Farrell, 2002), but its informal synonym, “driving while black” (or brown), predates drug interdiction, stemming from the racial and ethnic animus of earlier eras.
The debate is defined at one pole by a belief that racial prejudice leads to disparate treatment of minority citizens. At the other pole, the fundamental belief is that disparate attention by the authorities is fully justified by the different patterns of conduct by different groups, specifically documented rates of criminality. A third, complicated rationale lies between the two: a legacy of belief, embedded in police socialization and reinforced by selective perception, that minority groups are more prone to criminality. That middle ground ignores class distinctions that are masked by visible racial or ethnic identity.
More recently, the concept of racial profiling (as either allegation or practice) has expanded beyond its original framework to include anti-terror activities and immigration law enforcement, as well as scrutiny by private security in shopping malls and other venues. Scientific inquiry intended to confirm or refute the existence of bias has a wide range of methodological difficulties, and studies to date have produced mixed empirical evidence.
II. Two Perspectives on Racial Profiling
Police and their supporters assert that profiling represents a legitimate practice grounded in criminal behavior, to which race is incidental. Profiles arose from patterns of observable behavior, verified and sustained by convictions in courts of law. Successful searches based upon the profiles validate the general application of profiles as an investigative tool. The police continue to make periodic seizures of large quantities of uncut, bulk drugs during motor vehicle stops, which in their eyes is proof that the profile technique is a valid law enforcement tool.
Opponents tend to regard the successful interdictions as little more than the blind squirrel stumbling across an acorn by chance. While not rejecting the importance of drug interdiction, critics hold that the greater danger lies in rampant, unjustified, and unrestricted government intrusion into the lives of citizens. They note that the verification of the profiles’ accuracy has never been independently verified, and insist that the occasional triumphs must be judged in the context of the larger number of stops that yield no results whatsoever. Critics also point to a growing body of testimonial evidence that police stop vehicles with none of the attributes of the operational profile save that of the driver’s race. A more critical figure, the number of incidents based upon closer matches to the profile and still yielding no drugs or contraband, has not yet been quantified.
III. Disparity or Discrimination?
The central problem in racial profiling is whether disparity of treatment constitutes discrimination. In that respect, the issue mirrors many other debates in American life and jurisprudence.
Disparity can occur at multiple levels of police-initiated contact with citizens. The most basic level occurs in the act of being selected for police inquiry about a law violation. While motor vehicle stops are almost always supported legally by a threshold level of probable cause (a violation of the motor vehicle code, however minor), the greater issues hinges upon matters that occur after the stop.
Discrimination may be inferred from unequal numbers, but disparate treatment supports a stronger inference when persons of a minority class suffer a disproportionate burden than comparably situated majority citizens. In motor vehicle stops, requests for permission to search the vehicle in the absence of specific probable cause are the primary categories examined. In the absence of a search, police may more often issue tickets instead of warnings; written warnings (which may influence future actions) instead of verbal warnings, which simply address the immediate infraction; or conduct lengthier detentions for investigative purposes, including ordering the occupants out of the vehicle. For pedestrian stops, the length and character of the detention, and being frisked for weapons, are major categories of disparate actions.
For any type of police-initiated contact, both verbal and nonverbal police behaviors can carry suggestions of bias as well (language choice, tone of voice, even body language that conveys feelings of contempt). These attributes are not recorded in official reports of the contact, and are observed only rarely by independent researchers, but they can leave a lasting negative impression in the minds of the citizens. Those feelings can shape citizens’ interpretation of official statistics and explanations.
A comparable set of behavioral cues is embedded in the police evaluation of the people they stop, however. Evasive answers, disrespectful language or gestures, even body postures elevate the initial level of suspicion, and can both prolong a contact and lead to a harsher outcome than was originally contemplated. Though defenders of the police point to these behavioral cues as indicative of criminal behavior, a rival hypothesis centers negative reactions to the police in a longer history of mistrust based upon mistreatment by the police in earlier contact. That history may be both personal and vicarious.
IV. Profiling Generally
Profiling compiles behavioral attributes linked to specific criminal activities, creating a rudimentary sketch of as-yet-unknown persons who might be more likely than others to commit the crime. The serial killer profiling developed by the FBI makes use of crime scene evidence that suggests the personality of the perpetrator, and helps narrow the scope of inquiry. It was based upon extensive interviews with 33 convicted killers, a factual grounding comparable to the drug courier profile of Operation Pipeline (below).
Racial profiling results when a complex set of factors (which can include race) comprising a specific criminal profile are stripped away in practice, transformed into an unjustified oversimplification: “Minorities are more likely to have drugs [or commit other crimes] than are whites.” That stereotype overwhelms the elements of individualized facts required for probable cause. While it is the police who have borne the brunt of the criticism, the practice also exists in the operations of private sector security and asset protection (Meeks, 2000).
Since the attacks of September 11, 2001, “racial profiling” has been extended to persons of Middle Eastern origin or descent. A single factor shared with the 19 hijackers of 9/11—their region of origin, or physical features that appear to be of that region—casts suspicion of terrorism upon thousands of law-abiding citizens and visitors. They are more likely to be pulled aside for more extensive inquiries at airport security checkpoints and other sensitive areas. The historical antecedent most familiar to Americans is the internment of Japanese Americans after the attack on Pearl Harbor, while members of the German Bund (a pro- Nazi organization) in America remained free and largely unmolested.
V. Basic Legal Foundations
The consent search is integral to the racial profiling controversy. The Fourth Amendment to the Constitution protects citizens from unreasonable search and seizure of their persons, property, and effects, but a large volume of case law continually refines the operational understanding of what constitutes an “unreasonable” search. As a result, a number of exceptions have been created, relaxing the general rule that the police must obtain a warrant before they search. Among them are searches incidental to a lawful arrest, exigent (emergency) circumstances, “hot pursuit,” searches at ports of entry into the country, inventory searches of impounded vehicles, “inevitable discovery,” and when the owner of a property gives voluntary consent to the search. Most challenges to consent searches center on whether the consent was in fact voluntary, or was influenced by coercive police tactics or deception.
American police have the power to detain citizens briefly, and to inquire of their actions, when the police have reasonable, articulable suspicion that something may be wrong. Most motor vehicle stops are supported by some violation of a motor vehicle law, and court cases allow for brief detention to make further inquiries, such as to identify passengers, if the “articulable suspicion” threshold is met.
Police have the power to arrest citizens—a lengthier and more intrusive detention—only when they have probable cause. Probable cause constitutes a set of facts and circumstances that would lead a reasonably prudent person to believe that a crime has been, is being, or is about to be committed. For certain crimes, including drug dealing, the courts have acknowledged that a “reasonably prudent and experienced police officer” can detect criminal activity that might escape the notice of a citizen. This recognition of training and experience underlies the police assertion that their “sixth sense” understanding of crime should be respected by the public as well.
Although citizens have more limited expectations of privacy in their vehicles than in their homes, police do not have the authority to search a car based upon whim or mere suspicion. The line that separates suspicion from probable cause is constantly tested in court proceedings. Though the racial profiling debate centers on searches for drugs, “contraband” includes other categories of items that are illegal to possess or transport: smuggled cigarettes, loaded firearms, explosives or other controlled ordnance, child pornography, even illegal aliens.
If the police have probable cause that a crime is being committed in their presence—such as the smell of marijuana, or the existence of drugs, paraphernalia, or weapons in plain sight—they can arrest the occupants of a car and conduct a full search incidental to that arrest. They may also impound the vehicle and conduct an inventory search of all contents, for the mutual protection of the vehicle owner and the officers. In the absence of those circumstances, however, a police officer may only request permission from the driver or owner to search the car for contraband.
Consent is a recognized exception to the Fourth Amendment warrant requirement: Police need not obtain a search warrant if the rightful owner of a property gives free and informed consent to the search. In the context of racial profiling, the central issue is whether any such consent is voluntary under the circumstances of the stop. Police assert that all adult citizens of the United States know that they have the right to decline to give such permission, and so all consent is voluntary. They offer no explanation of why so many people who are carrying contraband voluntarily consent to having their vehicle searched—a statement contrary to interest—except to note that “we don’t catch the smart ones.”
Opponents assert that the nature of the stop and the inherently coercive presence of the police effectively eviscerate the right of refusal. The implied threat of further detention, coupled with vague suggestions of “consequences” for refusal, coerce compliance. Opponents also point to instances where “probable cause” suddenly arose as soon as citizens declined to give consent; they consider such incidents further evidence that most “consent” claimed by the police is involuntary, a legal fiction.
Another objectionable category involves illegal police actions, searches conducted over the objections of the vehicle occupants. Though rare, such intrusions are insulated from sanction on two fronts. Searches that yield no evidence usually end with the release of the vehicle and driver. The ability of the aggrieved driver to seek redress is expensive, and often futile in the absence of independent evidence. When illegal searches are successful, the discovered contraband weights the case in favor of the police account of the incident (again in the absence of independent verification of the driver’s version of the event). As more and more police agencies adopt in-vehicle recording devices for vehicle stops, such incidents are fewer and farther between, but suspicion remains in the eyes of many citizens.
VI. General History of Racial Profiling
The overall history of race relations in the United States remains pertinent to discussions of racial profiling. The second-class citizenship of black Americans was enforced by white police officers throughout the Jim Crow era, and extralegal suppression of the rights of citizenship continued well beyond the Brown v. Board of Education of Topeka, Kansas (1954) decision. Passage of the 1964 Civil Rights Act coincided with the rise of black militancy, and continued conflict between blacks and whites continued well into the decade of the 1970s.
While mainstream American culture has changed dramatically since the “long, hot summers” of racial conflict in the 1960s, police culture changes slowly. There is a lingering suspicion that both police training and the police socialization process subtly perpetuate outmoded racial attitudes from that era. When racial profiling first emerged as a public issue, this view was reinforced by revelations in the high-profile cases discussed below. Though America’s police forces are no longer a “white boys’ club,” that observation merely transfers animus—if any exists—from a white prejudice to a police prejudice.
VII. Contemporary History of Racial Profiling
The U.S. Customs Service originally developed a profile of air travelers who had elevated probability of being a drug “mule.” Like their equine namesake, drug mules were not drug lords, but beasts of burden: persons unconnected with a drug cartel’s membership (and therefore relatively invisible to police narcotics intelligence) were paid on a one-time basis to carry drug packages in their luggage on international flights, and deliver it to cartel personnel soon after their arrival in the United States. Specific conditions and behaviors were tip-offs to Customs personnel to inquire and examine carry-on luggage more closely: Lone travelers with luggage inappropriate to their itinerary, flying with tickets purchased with cash, and several other elements were central to the original airline passenger profile.
In 1984, Operation Pipeline adapted the practice to police highway drug interdiction, which sought to intercept bulk drugs in transit from southern points of entry. Seizing bulk drugs before they could be delivered, cut, and distributed in northern drug markets would reduce supplies for the street markets, deprive the drug syndicates of profits, and perhaps drive more addicts into treatment.
Operation Pipeline arose from police awareness that vehicle stops yielding large quantities of drugs shared certain characteristics. The vehicles were northbound at high rates of speed, usually occupied by two black or Latino males in their late teens or early twenties. Vehicle interiors contained fast-food wrappers and pillows and blankets (both indicative of nonstop travel), and detergent or other strong-smelling substances to mask the odor of drugs. The trunk might be locked, with only a valet key for the drivers; there might be tool or burn marks or other indications that drugs had been secreted in hidden compartments. Roadmaps might indicate places and timetables to call the drivers’ monitor (Buerger & Farrell, 2002).
The profile alone did not constitute probable cause for the police to conduct a warrantless search. It was only a prompt for officers to pay closer attention to the vehicle, to develop probable cause if possible, or to obtain consent to search the car in the absence of specific probable cause.
VIII. The Flagship Cases in Racial Profiling
Three cases exposed the police application of the “drug courier profile” concept to scrutiny. In April 1998, two New Jersey State Troopers initiated a vehicle stop of a van on the New Jersey Turnpike that resulted in the shooting and wounding of three of four young minority men. The “profile” was cited as one reason for the stop, even though the vehicle was southbound. No drugs or other contraband were found in the van, and there were significant discrepancies between the official police report of the incident and other evidence.
The Turnpike shooting case revived scrutiny of New Jersey State Police practices that had languished since the 1996 case of State of New Jersey v. Pedro Soto et al. In that case, a New Jersey court overturned 17 drug possession cases brought by a state police drug interdiction team working another section of the New Jersey Turnpike. The defendants produced evidence that the team stopped and searched minorities, particularly African Americans, almost 5 times more frequently than they did white drivers.
Though black drivers were only 15% of the “violator” group (people driving at excessive speed, or committing other observable moving violations), vehicles driven by blacks comprised almost half of the stops made by the interdiction unit. By comparison, a state police unit doing speed enforcement in the same area of the New Jersey Turnpike stopped drivers at rates much closer to the observed proportion of highway use. The difference strongly suggested that the drug interdiction team equated racial identity with a greater likelihood of participation in illicit distribution of drugs.
A civil case, Wilkins v. Maryland State Police (2003), used the same analytical technique employed in the Soto case. Though whites comprised almost three quarters of drivers and speed violators, only 20% of the cars searched were driven by whites. Blacks made up 17% of the driving population, and slightly more of the violators, but were almost 73% of all persons searched. A total of 4 of every 5 drivers searched by the Maryland State Police interdiction team were of minority status.
If minority drivers were indeed more likely to have drugs than their white counterparts, a stronger argument might be made that the observed disparities were justified. However, the Maryland case revealed that the proportion of black and white drivers found to be carrying drugs was practically equal: 28.4% of blacks, and 28.8% of whites (other sources cite a slight difference: 34% of blacks and 32% of whites; the difference remains marginal). The New Jersey proportions were even lower: 13%of blacks, 10.5%of whites, and 8% of Latinos carried drugs. The New Jersey proportions are closer to the findings in other early studies; the Maryland hit rates are the highest in that first round of profiling inquiries.
More telling, none of the cases studied suggested that the drugs found in profile-based searches were pre-market bulk quantity (the quantum envisioned by the drug courier profile). New Jersey’s post-Soto review explicitly noted that almost all seizures were of small amounts, consistent with post-market personal use (Verniero & Zoubeck, 1999); the conclusion is implicit in the absence of any discussion of the quantum of seizures in other studies. The inherent difference in the danger posed by market-quantity shipments, in contrast to personal-use quantities, is a potential limit on the latitude to be allowed government agents, and a fundamental problem with the game theory school of proof (discussed below).
Further inquiry into the New Jersey State Police practices in the wake of the April 1998 Turnpike shooting revealed that the state’s training regimen included material that essentially equated minority citizens with greater criminality, effectively directing troopers to focus on minority motorists (Verniero & Zoubeck, 1999).
Both Maryland and New Jersey entered into consent decrees with the U.S. Department of Justice to amend their practices, monitor trooper performance, and revise training that had perpetuated the racial stereotype. Those findings established racial profiling as a “fact,” but only in the two jurisdictions. In the public sphere, an ironic reversal of positions occurred. Where the police had tacitly assumed the actions of a small group of drug couriers were typical of the minority communities, the public now assumed that the practices of two agencies represented police practices everywhere. The distinction remains central to the debate over racial profiling in any guise: The generalizability of localized findings (or enterprise-specific profiles) to larger groups sharing only superficial aspects of the offending groups is limited.
The police insist that profiling is a legitimate tool of inquiry, well grounded in the experience of practice. The public points to the Maryland and New Jersey statistics, standing firm in their belief that it is merely a modern continuation of racial prejudice, now dressed up with pseudoscientific prose. The scientific questions that have arisen in the wake of the Soto and Wilkins cases have examined a wider range of police activities and actions in numerous other venues. They embody an attempt to discern whether and where the “fact” of racial profiling by police exists beyond the specific milieu of the interstate highways in New Jersey and Maryland.
Overall, four issues are salient. The first is whether criminal propensity is more likely in one group than another, with a collateral question of what purported proofs should be considered valid. The second area involves the continuing refinement of methodology, and the factors to be considered when examining aggregate police data in vastly different locations for evidence of racial bias. A contemporary assertion, promulgated in different fashion by the police and by the econometric school of criminology, is that the “criminal propensity” point can be proven by a variation of game theory, based upon the results of consent searches without regard for any other considerations (including those of civil rights). The third is a legalistic consideration of whether elevated government intrusion justified against large-scale harm (proliferation of drug markets, or another 9/11-type attack) can be applied equally to smaller gains (seizure of personal-use drug amounts). A fourth operational issue rests upon the degree of precision with which the profile is applied by police officers and other agents of the state.
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.
B. Scientific Proof
Criminologists seek a scientific justification for police actions, in lieu of normative reliance upon unverifiable “sixth sense” justifications. The contemporary scholarly focus on racial profiling rests upon a debate regarding whether a variation on game theory can provide such a foundation.
One thrust of the early racial profiling research took up the question of whether disparity alone constituted de facto discrimination, or could occur innocuously.Various studies identified different uses of the highway for minority groups based on employment opportunities and recreational pursuits (Meehan & Ponder, 2002a). Another documented disproportionate representation of young minority males in the population of high-speed law violators on the New Jersey Turnpike, inferring the legitimacy of at least one assumption of the original profile (Lange, Johnson, & Voas, 2005).
The contemporary debate centers on a proposition by scholars drawing from the field of econometrics, asserting that the question of disparity or discrimination can be resolved by the application of a variation of game theory (Engel, 2008; Persico & Todd, 2008). This solution hinges on an examination of the “hit rate” (rate of discovery of contraband) of police searches, independent of any other concerns (Persico & Todd, 2008), treating the populations of white and non-white drivers as “urns” that can be sampled. This view posits that rational choice underlies the options of drivers to carry contraband (in the present discussion, drugs), and the choice of police officers to conduct investigations for drugs. Rational police officers would focus their efforts on groups most likely to carry drugs.
In essence, this econometric argument takes the side of the police, tacitly accepting the argument that group characteristics do exist, and can be inferred at the individual level. Furthermore, the acceptance of group-specific criminality (drug use, in this instance) assumes facts not in evidence. It is a hypothesis in the classic methodological sense, to be proved or disproved by scientific testing that cannot be conducted, and thus remains hypothetical.
Methodologically, the hit rate proposal encounters several difficulties. Police searches are conducted under a variety of situations, including searches incidental to arrest, inventory searches when a vehicle is towed, and in circumstances when probable cause is developed at the scene independent of the original reason for the stop. In addition, searches are conducted for a variety of motives, not just drugs (Engel & Tillyer, 2008). As a result, analyses based solely upon the hit rate for drugs must be able to discern those stops and searches motivated by an officer’s desire to “maximize the probability of a ‘hit’” (Persico & Todd, 2008). A further complication arises in the need to distinguish personal-use hits from the bulk drug seizures arising from the proper application of the drug courier profile, although the modern debate fails to pursue that distinction.
The proposition of hit-rate analysis has the advantage of being theoretical, unconnected from the larger concerns of the criminal justice system. The individuals who comprise the “urns” that police officers supposedly sample are not research subjects, but citizens of a country that presumes their innocence. They are defended by rules and expectations of conduct by agents of the state that do not allow random selection for the purposes of testing. Basic civil rights preclude the use of the motoring public (or the ambulatory public) as a laboratory.
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.
X. Research on Racial Profiling
In the wake of the 1998 New Jersey Turnpike shooting, a fairly broad scholarly effort ensued to establish whether or not police engaged in racial profiling in other jurisdictions. In major cities, “stop and frisk” questioning of pedestrians also fell under the racial profiling umbrella. Dozens of studies have been conducted, yielding mixed results. In the earliest round of inquiry, most reputable studies indicated that minorities were stopped in numbers disproportionately higher than their representation in population statistics (Engel, Calnon, & Bernard, 2002). Later studies have been mounted after the controversy spurred reform of practices and greater scrutiny; the results of emerging studies also document disparities, but generally are less inclined to conclude that discrimination drives them. However, the later studies also occur in a climate where police and civic officials are well aware of the racial profiling debate. Police agencies are more likely to have taken steps to minimize disparity, and are likely more politically astute in their interpretation of findings.
Whether such disparity represents police prejudice or is the by-product of patterns of civilian behavior has yet to be answered definitively. Because policing is locally based, practices differ by jurisdiction. One comprehensive study indicated wide diversity of practices across the 127 different jurisdictions in Massachusetts (Farrell, McDevitt, Bailey, Andresen, & Pierce, 2004). That study also uncovered evidence of a possible gender bias in some jurisdictions (i.e., the propensity of male officers to stop single, young, female drivers), an artifact not pursued in other studies.
Studying racial profiling has several methodological hurdles. First is establishing an appropriate population baseline against which to compare the proportion of minority stops. Second is the limited number of variables available in official records, the most common source of data for profiling studies. Because of these limitations, the most difficult task is determining whether any disparities are grounded in prejudice, or are a product of real (rather than presumed) criminal conduct.
The original New Jersey and Maryland turnpike cases were relatively easy: The proportions of drivers on the highway could be established by direct observation, as could the proportions of speeders and other motor vehicle code violators. Observable vehicle code violations constituted the sole basis for initiating a stop; the choice to request or initiate a search was less directly observable.
Away from limited-access highways, the question becomes more complex. Police officers working in neighborhoods populated by minorities rightly argue that most of the people they encounter will be of minority status, whether the officers are prejudiced or committed to equality. Furthermore, police investigative stops in cities and towns are often prompted by citizen complaints, providing specific descriptive information that is far more detailed than a profiling “hunch.”
Studies note disparate patterns of highway use (both by time and route) by minority drivers, with differences linked to residential, employment, and recreational patterns (Meehan & Ponder, 2002a). Certain highways are transportation corridors from exurbs and suburbs into the core cities, and the commuting drivers may represent different ethnic proportions from the towns’ resident populations. One post-shooting study in New Jersey suggested that young minority males comprised a much greater proportion of drivers using excessive speed (Lange et al., 2005). It retroactively provided nominal support for the original profile, but remains untested against actual vehicle stop practices.
Another study found that even within a single jurisdiction, racial disparity in stops increased with distance from the city border. Minority drivers were far more likely to be stopped in homogeneous white suburban neighborhoods farthest from the city line, where black or brown faces stood out. Police activity was relatively race-neutral in areas abutting a core city, where a heterogeneous population mix was the norm (Meehan & Ponder, 2002b).
More critical to the interpretation of police stop data is the nature of formalized record keeping. Most police records systems were designed to facilitate case tracking and offender identification. Even in those jurisdictions that have adopted more rigorous tracking by race and ethnicity, either prospectively or in response to consent decrees or public criticism, few forms reveal the actual motivation of the officer. The Supreme Court decision of Whren et al. v. United States (1996) has legitimized the police use of the pretext stop, initiating action on the basis of a violation unrelated to the officers’ real intent to conduct an investigation. Almost all vehicle stops meet the low threshold for probable cause (a moving violation or equipment defect), and are therefore legal.
Police records systems generally record only the fact of a stop, not its context. Computer analysis of aggregate stop data is insufficient to establish motivation because such information is not recorded. It remains difficult to determine whether disparate patterns represent overt bias, subtle bias, or a statistical artifact of police deployment based on crime and call patterns, or other localized phenomena.
Analyzing stop data at the aggregate level avoids any scrutiny of individual officers’ work habits. Such techniques have political benefits, but if officers in small groups engage in prejudicial behaviors unrepresentative of the agency practices, the bias may be masked statistically in the larger agency patterns. The impact of their actions upon the minority citizens will remain vivid, however, and the gap between what is experienced by citizens and what can be demonstrated statistically will remain a cause of friction.
Central to the ongoing debate regarding racial profiling is the balance of the protection of public safety with the protection of individual liberty. In the original context, the potential gains in public safety to be realized by intercepting bulk drugs before they could be distributed might justify the tightly controlled use of an otherwise intrusive police tool. The contemporary focus of research ignores quantity, focusing instead on the appropriateness of a “hit rate” based on any quantity of drugs as a justification.
A decade after the New Jersey Turnpike shooting that revived the racial profiling controversy, the use of profiling continues, and continues to be problematic. Questions of the accuracy and precision of application remain unanswered: Given the local control of police agencies, the questions are revisited on a case-by-case basis. Moreover, it is likely that the police have become more astute, both politically and scientifically, in their ability to articulate the reasoning processes of individual officers, and the patterns of agency-wide actions.While that possibility invites the reaction that “the police have become better liars,” it is equally possible that the police are becoming better at identifying and articulating the subtle behaviors that they observe, giving a more valid operational definition to the prized “sixth sense” of the street cop.
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