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.