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The consideration of race, ethnicity, or national origin by an officer of the law in deciding when and how to intervene in an enforcement capacity.
Police officers often profile certain types of individuals who are more likely to perpetrate crimes. Many of these suspects are profiled because of activities observed by police officers. For example, if someone who is obviously poor is frequently seen in a more affluent neighborhood, such a person may be profiled as someone with possible criminal intent. Similarly, if an individual living in an obviously poor neighborhood has in his or her possession several expensive items, that person may be profiled as someone involved in crime, such as drugs or theft. Although this type of profiling is not always considered fair, law enforcement officers consider it necessary to identify possible criminal activity before it occurs and causes injury to others.
One of the most heated issues in law enforcement is the profiling of individuals based solely upon the race, ethnicity, or national origin of the individual. Statistics show that African Americans are several times more likely to be arrested and incarcerated than white Americans. As of 2000, fewer African American men were in college than were in prison. Moreover, black children were nine times as likely as white children to have at least one parent in prison.
The most common form of racial profiling occurs when police stop, question, and search African American, Hispanic American, or members of other racial minorities disproportionately based solely on the individuals' race or ethnicity. In 1996, the television network ABC aired a report entitled "Driving While Black," in which it paid three younger black men to drive around the city of New Brunswick, New Jersey, in a Mercedes-Benz. Three officers in the city pulled over the car for a minor traffic infraction and then proceeded to search the car and the young men. The show demonstrated with little doubt that the only reason the three men were pulled over was their race. Nevertheless, the officers brought a Defamation suit against ABC, claiming that ABC had defamed their character and had violated New Jersey's anti-wiretapping law. In 2000, a New Jersey Superior Court judge dismissed the lawsuit.
Should Police Practice Racial Profiling?
The 1998 shooting death of three young minority men by state troopers during a traffic stop on the New Jersey Turnpike helped spark a national debate on the issue of so-called "racial profiling" by law enforcement officials. Critics of profiling charge that the practice is inherently racist, because law enforcement officials tend to stop and search African Americans and other minorities more often than whites. Critics also charge that aggressive stop-and-search tactics erode public confidence in law enforcement and violate the Civil Rights of all citizens. In 1999, they led the charge for federal legislation to determine the extent to which racial profiling is practiced. Defenders of profiling concede that some law enforcement officials may stop and search blacks and other minorities at a disproportionately high rate. However, they ascribe this to overzealous police work and believe it can be addressed through training. Furthermore, they credit profiling, in part, with a significant decrease in America's crime rate and oppose efforts to collect data on stop-and-search tactics.
Critics of profiling acknowledge that law enforcement officials have broad discretion when it comes to stopping and searching citizens. On the highway, evidence of a traffic infraction alone is justification for stopping a motorist. Off the highway, a police officer must have a "reasonable suspicion" that a person is armed and presents a danger, and must be able to articulate why he or she felt that way. This "reasonable suspicion" standard evolved from a landmark 1968 Supreme Court decision, terry v. ohio, 392, U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and it is significantly lower than the "probable cause" standard that police must meet to make an arrest or to obtain a Search Warrant. Just how much lower has been the subject of much debate and considerable litigation. The courts have consistently held that simply being of a certain race or fitting a certain type or loitering in a high-crime area does not constitute sufficient grounds for frisking. Making a furtive gesture or having a bulge in your pocket, on the other hand, does.
The extent to which racial stereotyping is used in identifying "suspicious" individuals is a key point of contention in the debate over profiling. Critics of profiling point to statistics that indicate that African American and other minority drivers are stopped and searched at a disproportionately high rate in comparison with white motorists. In Maryland, for example, a study revealed that 70 percent of those stopped and searched on a stretch of I–95 were African American—despite the fact that they represented only 17 percent of drivers on the road. A demographic expert who examined the data described the odds of this disparity's occurring by chance as "less than one in one quintillion." A similar study conducted in New Jersey in 1994–95 showed that on the southern section of the New Jersey Turnpike cars with black occupants represented only 15 percent of those violating the speed limit, yet they accounted for 46 percent of the drivers pulled over.
Profiling's detractors renounce efforts to defend profiling on the grounds that tendency toward criminality, not race or ethnicity, is being profiled as reflecting a pattern of stereotyping by police. When police look for minorities, these critics say, it is minorities they will arrest. While acknowledging the role of aggressive policing in the recent drop in crime, they decry the deleterious effect of profiling on public confidence in law enforcement, particularly in minority communities. How many innocent citizens have to be inconvenienced, these critics ask, in order to keep the streets free of criminals?
The lack of national data on profiling has led critics of the practice to call for national legislation to study the problem. In 1999, both the House and the Senate introduced bills entitled the Traffic Stops Statistics Act of 1999 (H.R. 1443, S. 821, 106th Cong., 1st Sess.), which would have required the attorney general to conduct a study of stops for routine traffic violations by law enforcement officers. However, the bills died after committee deliberations.
Defenders of profiling are quick to deny or deemphasize its racial component. They condemn profiling solely on the basis of race, but defend profiling by looking for signs that a person might be a lawbreaker as good police work. If blacks are being stopped and searched at a disproportionately high rate as compared to whites, they charge, it is because they commit a disproportionately high number of crimes. Defenders of profiling point to statistics that show, for example, that while blacks comprise only about 13 percent of the population, they make up 35 percent of all drug arrests and 55 percent of all drug convictions.
Where there is unreasonable racial stereotyping, these defenders assert, the problem is easily solved by training and discipline. Police Academy graduates in New York City, for example, are drilled insistently on what does and does not constitute reasonable grounds for a frisk. Members of the city's elite Street Crimes Unit receive a copy of the department's training manual, "Street Encounters," which expressly stipulates that if an officer's reason for approaching someone "is a personal prejudice or bias, such as the person's race or hair length, the encounter is unlawful."
Furthermore, defenders of profiling argue that it has proven to be an effective tactic in the fight against crime. Profiling, they say, allows law enforcement officials to focus their attention on those thought most likely to commit crimes. If this sometimes results in law-abiding citizens being inconvenienced when police aggressively enforce the laws and investigate crimes, this should not cause those stopped and searched to believe that their rights were violated. As the nation's violent crime rate continues to plummet, profiling advocates ask, is it an acceptable time to change police practices that have contributed to this drop in crime?
Law enforcement groups have been almost universal in their opposition to legislation requiring a study of traffic stops, such as the the Traffic Stops Statistics Study Act. They claim that it would be costly and could lead to lawsuits against police. The bill, they say, would place an unfair burden on the police and lengthen traffic stops. In addition, collecting information on personal characteristics would likely be considered highly offensive by many individuals. If an officer is uncertain of someone's ethnic background, for example, the officer would often have to ask for this information and an uncomfortable situation could result.
In June 1999, the Massachusetts Supreme Judicial Court ruled in a 5–2 decision that police in Massachusetts cannot order people out of their cars unless they pose a threat, which is a stricter standard than the U.S. Supreme Court handed down in its decision that police may order people out of their cars on routine traffic stops. The majority opinion cited concerns of racial discrimination by police in its ruling, taking note of allegations that police stop African Americans disproportionately.
The incident in "Driving While Black" demonstrates that racial profiling does occur, but lawmakers and courts have had some difficulty controlling its influence. Under federal Constitutional Law, a police officer who stops a car for a minor traffic violation may search the car and its driver if the driver consents. Such searches sometimes result in arrests if drugs or weapons are discovered, but they have become a controversial law-enforcement technique, even when such searches do not involve incidents of racial profiling. However, the frequency with which racial profiling occurs against minorities has spurred civil liberties and Civil Rights groups to demand stricter limitations on when officers may request a vehicle search.
New Jersey has remained in the national spotlight with respect to incidents of racial profiling. Former New Jersey Governor Christine Todd Whitman and the state attorney general admitted that New Jersey state police had engaged in racial profiling. Late in 1999, the New Jersey state police entered into a Consent Decree in a federal case by which the police agreed to require reasonable suspicion of a crime before asking for consent searches during traffic stops. In a decision in 2002, the New Jersey Supreme Court made the policy a mandatory requirement under the Constitution of New Jersey for all law enforcement officers in the state.
Other states have made similar concessions. In January 2003, the Maryland State Police settled a Class Action lawsuit brought by the American Civil Liberties Union (ACLU) regarding the use of racial profiling in that state. The settlement included an agreement by the Maryland police to enact sweeping changes to prevent profiling of racial minorities. The ACLU has targeted other state law enforcement offices as well.
The United States has a history of racial profiling, and, in some cases, the incidents were particularly egregious. During World War II, the U.S. government, fearful of potential spies from Japan, sent hundreds of thousands of Japanese Americans to detention camps in southern California. Many of those incarcerated were American citizens. In a decision that has largely been considered one of the most iniquitous in the history of the Supreme Court, Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 2d 194 (1944), the Court found that during times of war, the military should have discretion to make decisions regarding the incarceration of certain groups and that the government's actions in incarcerating Japanese Americans were justified.
During the September 11th Attacks,19 Middle Eastern terrorists carried out a terrorist plot that resulted in the destruction of the World Trade Center in New York, severe damage to the Pentagon in Washington, D.C., and a major loss of life. After the attacks, the United States announced it would wage a War on Terrorism, which included enhancements in the ability of law enforcement personnel to track, question, and even arrest individuals suspected of terrorist activities.
In the first two weeks after the attacks, federal officials arrested or detained more than 500 people. Thousands of resident Aliens were also questioned. The vast majority of those questioned or arrested were Arab Americans or of Middle Eastern nationalities. Some commentators have suggested that the questioning of members of these nationalities and ethnic backgrounds is justified because a disproportionate number of terrorists are Arabic or Middle Eastern. However, civil rights groups have decried the practice of subjecting these individuals to questioning based solely on their race or ethnicity.
One of the most significant differences between racial profiling of African and Hispanic Americans and the profiling of potential terrorist threats is the level of support expressed by citizens for such profiling. According to statistics in 1999, 81 percent of respondents in a national poll disapproved of the practice of racial profiling, defined narrowly as the practice of police officers stopping motorists based solely on the race or ethnicity of those motorists. However, after the terrorist attacks, 58 percent of respondents in another poll favored the practice of subjecting Arabs to more intensive scrutiny when they boarded planes.
Other questions also have been raised about the profiling of Arabic and Middle Eastern individuals. Even if, in the post–September 11 period, profiling was acceptable to prevent a reoccurrence of terrorist attacks, for how long should this practice be acceptable? Moreover, if this practice is successful in preventing terrorist activities, should it be extended to other "suspect" groups, which may include African or Hispanic Americans?
These types of questions have been raised in other contexts. For example, commentators have suggested that the war on Drugs and Narcotics has clear overtones of racism. According to a study in 1986, an African American was six times as likely as a white American to go to jail for a drug related offense. By 1996, an African American was 22 times as likely to be incarcerated for such an offense. Because the war on drugs has been an ongoing battle, several commentators have suggested that profiling in this war has become perpetual.
Complaints of racial profiling are not limited to law enforcement personnel. Some department and other retail stores have been accused of denying service or giving inferior service to members of minority groups. Several establishments, including Eddie Bauer, Dillard's Department Stores, and Denny's Restaurants, have been sued in highly publicized cases in which plaintiffs have alleged that the establishments have discriminated on the basis of race. Complaints of discrimination against Arabic and Middle Eastern individuals have also been raised against private companies. In April 2003, the U.S. Transportation Department submitted a complaint that American Airlines had removed from flights at least ten individuals suspected of being Middle Eastern, Southeast Asian, or Muslim.
Ellmann, Stephen J. 2003. "Racial Profiling and Terrorism." New York Law School Journal of International and Comparative Law 22.
Fredrickson, Darin D., and Raymond P. Siljander. 2002. Racial Profiling: Eliminating the Confusion Between Racial and Criminal Profiling and Clarifying What Constitutes Unfair Discrimination and Persecution. Springfield, Ill.: Charles C. Thomas.
Gross, Samuel R., and Debra Livingston. 2002. "Racial Profiling Under Attack." Columbia Law Review 1413.
Harris, David A. 2003. "Racial Profiling Redux." St. Louis University Public Law Review 73.
Heumann, Milton, and Lance Cassak. 2003. Good Cop, Bad Cop: Racial Profiling and Competing Views of Justice in America. New York: P. Lang.
Sandy, Kathleen R. 2003. "The Discrimination Inherent in America's Drug War: Hidden Racism Revealed by Examining the Hysteria Over Crack." Alabama Law Review 665.