THE ROOTS OF RACIAL PROFILING

Why Are Police Targeting Minorities For Traffic Stops?

It is early in the morning, and the well-dressed young African-American man
driving his Ford Explorer on I-75 sees the blue lights of the Georgia State
Patrol car behind him. The officer pulls behind the sport utility vehicle
and the young man's heart begins to sink.

He is on his way to Atlanta for a job interview.

The stop, ostensibly for speeding, should not take long, he reasons, as the
highway patrol officer walks cautiously toward the Explorer. But instead of
simply asking for a driver's license and writing a speeding ticket, the
trooper calls for backup. Another trooper soon arrives, his blue lights
flashing as well.

The young man is told to leave his vehicle, as the troopers announce their
intention to search it. "Hey, where did you get the money for something
like this?" one trooper asks mockingly while he starts the process of going
through every inch of the Explorer. Soon, an officer pulls off an inside
door panel.

More dismantling of the vehicle follows.

They say they are looking for drugs, but in the end find nothing.

After ticketing the driver for speeding, the two officers casually drive
off. Sitting in his now-trashed SUV, the young man weeps in his anger and
humiliation.

Unmotivated searches like this are daily occurrences on our nation's
highways, and blacks and white liberals have been decrying the situation
for several years.

Many conservatives, on the other hand, dismiss such complaints as the
exaggerations of hypersensitive minorities. Or they say that if traffic
cops do in fact pull over and search the vehicles of African Americans
disproportionately, then such "racial profiling" is an unfortunate but
necessary component of modern crime fighting.

The incident described above should give pause to those who think that
racial profiling is simply a bogus issue cooked up by black leaders such as
Al Sharpton and Jesse Jackson to use as another publicity tool. One of us
teaches in an MBA program that enrolls a fairly large number of African
Americans, and the story comes from one of our students.

Indeed, during class discussions, all of the black men and many of the
black women told stories of having their late-model cars pulled over and
searched for drugs.

While incidents of racial profiling are widely deplored today, there is
little said about the actual root cause of the phenomenon. The standard
explanations for racial profiling focus on institutional racism, but that
idea runs contrary to the sea change in social attitudes that has taken
place over the last four decades.

On the contrary, the practice of racial profiling grows from a trio of very
tangible sources, all attributable to the War on Drugs, that $37 billion
annual effort on the part of local, state, and federal lawmakers and cops
to stop the sale and use of "illicit" substances. The sources include the
difficulty in policing victimless crimes in general and the resulting need
for intrusive police techniques; the greater relevancy of this difficulty
given the intensification of the drug war since the 1980s; and the
additional incentive that asset forfeiture laws give police forces to seize
money and property from suspects. Since the notion of scaling back, let
alone stopping, the drug war is too controversial for most politicians to
handle, it's hardly surprising that its role in racial profiling should go
largely unacknowledged.

The Practice of Racial Profiling

Although there is no single, universally accepted definition of "racial
profiling," we're using the term to designate the practice of stopping and
inspecting people who are passing through public places -- such as drivers
on public highways or pedestrians in airports or urban areas -- where the
reason for the stop is a statistical profile of the detainee's race or
ethnicity.

The practice of racial profiling has been a prominent topic for the past
several years.

In his February address to Congress, President George W. Bush reported that
he'd asked Attorney General John Ashcroft "to develop specific
recommendations to end racial profiling.

It's wrong, and we will end it in America." The nomination of former New
Jersey Gov. Christine Todd Whitman as head of the Environmental Protection
Agency was challenged on the basis of her alleged complicity in racial
profiling practices in the Garden State. Whitman had pioneered her own
unique form of "minority outreach" when she was photographed frisking a
black crime suspect in 1996. Copies of the photo were circulated to
senators prior to her confirmation vote. (By the same token, in February
1999, Whitman fired State Police Superintendent Carl A. Williams after he
gave a newspaper interview in which he justified racial profiling and
linked minority groups to drug trafficking.) More recently, Eleanor Holmes
Norton, the District of Columbia's non-voting member of Congress, has tried
to introduce legislation that would withhold federal highway dollars from
states that have not explicitly banned racial profiling.

Although some observers claim that racial profiling doesn't exist, there is
an abundance of stories and statistics that document the practice.

One case where law enforcement officers were particularly bold in their
declaration of intent involved U.S. Forest Service officers in California's
Mendocino National Forest last year. In an attempt to stop marijuana
growing, forest rangers were told to question all Hispanics whose cars were
stopped, regardless of whether pot was actually found in their vehicles.

Tim Crews, the publisher of the Sacramento Valley Mirror, a biweekly
newspaper, published a memo he'd gotten from a federal law enforcement officer.

The memo told park rangers "to develop probable cause for stop...if a
vehicle stop is conducted and no marijuana is located and the vehicle has
Hispanics inside, at a minimum we would like all individuals FI'd [field
interrogated]." A spokeswoman for Mendocino National Forest called the
directive an "unfortunate use of words."

The statistics are equally telling.

Consider Crises of the Anti-Drug Effort, 1999, a report by Chad Thevenot of
the Criminal Justice Policy Foundation, a group that monitors abuses of the
American legal system. Thevenot writes: "76 percent of the motorists
stopped along a 50-mile stretch of I-95 by Maryland's Special Traffic
Interdiction Force (STIF) were black, according to an Associated Press
computer analysis of car searches from January through September
1995....Blacks constitute 25 percent of Maryland's population, and 20
percent of Marylanders with driver's licenses." As this story was being
written, New Jersey was holding hearings on racial profiling, and one state
police investigator testified that 94 percent of the motorists stopped in
one town were minorities.

Minorities are not only more likely to be stopped than whites, but they are
also often pressured to allow searches of their vehicles, and they are more
likely to allow such searches.

In March, The New York Times reported that a 1997 investigation by New
Jersey police of their own practices found that "turnpike drivers who
agreed to have their cars searched by the state police were overwhelmingly
black and Hispanic."

Some commentators, such as John Derbyshire in National Review, have
defended racial profiling as nothing more than sensible police technique,
where police employ the laws of probability to make the best use of their
scarce resources in attacking crime.

As Derbyshire put it in his February 19 story, "In Defense of Racial
Profiling," the police engage in the practice for reasons of simple
efficiency: "A policeman who concentrates a disproportionate amount of his
limited time and resources on young black men is going to uncover far more
crimes -- and therefore be far more successful in his career -- than one
who biases his attention toward, say, middle-aged Asian women."

George Will, in an April 19 Washington Post column, contends that the use
of race as a criterion in traffic stops is fine, as long as it is just "one
factor among others in estimating criminal suspiciousness." Similarly,
Jackson Toby, a professor of sociology at Rutgers, argued in a 1999 Wall
Street Journal op-ed that, "If drug traffickers are disproportionately
black or Hispanic, the police don't need to be racist to stop many minority
motorists; they simply have to be efficient in targeting potential drug
traffickers."

Clayton Searle, president of The International Narcotics Interdiction
Association, writes in a report, Profiling in Law Enforcement, "Those who
purport to be shocked that ethnic groups are overrepresented in the
population arrested for drug courier activities must have been in a coma
for the last twenty years.

The fact is that ethnic groups control the majority of the drug trade in
the United States. They also tend to hire as their underlings and couriers
others of their same group."

Searle's report is available at: http://www.inia.org/whats-new.htm#Profiling

Case Probability vs. Class Probability

The stories and statistics that draw outrage tend to share two common
elements: They involve a search for drugs and the prospect of asset
forfeiture. These types of investigations have led police from the solid
ground of "case probability" to the shifting sands of "class probability"
in their quest for probable cause.

Once police are operating on the basis of class probability, there is a
strong claim that certain groups of people are being denied equal
protection under the law.

Case probability describes situations where we comprehend some factors
relevant to a particular event, but not all such factors.

It is used when a doctor tells a patient, "Given your lifestyle, you'll
probably be dead in five years." Class probability refers to situations
where we know enough about a class of events to describe it using
statistics, but nothing about a particular event other than the fact that
it belongs to the class in question. Class probability is being used when
an insurance company estimates that a man who is 40 today will probably
live to be, on average, about 80. The insurance company is not making any
statement about the particular circumstances of any particular man, but
merely generalizing about the class of 40-year-old men.

This distinction helps us to differentiate two ways of using information
about race or ethnicity in a police investigation. As an example of the
first type, employing case probability, consider a mugging victim who has
told the police that her mugger was a young Asian man. Here, it is quite
understandable that the group of suspects investigated will not "look like
America." There is no sense in forcing the police to drag in proportional
numbers of whites, blacks, women, and so on, proving that they have
interrogated a representative population sample of their city, before they
can arrest an Asian fellow.

No, their investigation should clearly focus on young Asian men.

It's not at all impossible that a prevalence of some type of criminal
activity in some ethnic group will lead to many investigations that focus
on members of that group.

As long as this is based on evidence gathered from particular crimes, there
is nothing untoward here. If it turns out, for instance, that Bulgarians
are especially numerous among purse-snatchers in some city, then a summary
of police interrogations might discover evidence of "Bulgarian profiling"
in the investigation of purse-snatching. But this may be a statistical
mirage if it turns out that no one in the police force set out to focus on
Bulgarians as potential purse-snatchers. The emergent result is an
unintended outcome of policemen following an entirely valid principle of
crime investigation: Concentrate on suspects who fit the description you
have of the suspect.

But when we turn our attention to the type of racial profiling that
occurred on the highways of Maryland and New Jersey, or that is described
in the Forest Service memo, we find a very different phenomenon, one where
investigations proceeded on the basis of class probability. Here, before
having evidence of a particular crime, police set out intending to
investigate a high proportion of people of some particular race, ethnic
group, age group, or so on. Their only justification is that by doing so,
they increase their chances of discovering some crimes.

Additionally, there is a fundamental difference between the type of crime,
such as the mugging example above, that is usually investigated by
gathering evidence about a known crime, and narrowing the search based on
such evidence, and the type investigated by looking in as many places as
possible to see if one can find a crime.

The first type of crime generally has a victim, and the police are aware of
a specific crime that has been committed. The crime is brought to the
attention of the police by a complainant, even if the complainant is a corpse.

George Will, in his defense of current police practice, points out: "Police
have intelligence that in the Northeast drug-shipping corridor many
traffickers are Jamaicans favoring Nissan Pathfinders." This is quite a
different situation than having intelligence that a particular Jamaican
robbed a store and escaped in a Pathfinder. If you are a law-abiding
Jamaican who by chance owns a Pathfinder, you frequently will find yourself
under police surveillance, even though the police have no evidence about
any particular crime involving any particular Jamaican in a Pathfinder.

We could not have any effective law enforcement without allowing some scope
for case probability. If your twin brother robs a bank in your hometown, it
does not seem to be a civil rights issue if the police stop you on the
street for questioning. When the police discover their mistake, they should
apologize and make you whole for any damages you have suffered.

Such an event, while unfortunate, is simply a byproduct of attempting to
enforce laws in a world of error-prone human beings possessing
less-than-perfect knowledge. It will be a rare event in law-abiding
citizens' lives, and it is highly unlikely that such people will come to
feel that they are being targeted.

However, the use of class probability in police investigations is correctly
regarded with extreme suspicion, as it violates a basic principle of
justice: The legal system should treat all citizens equally, until there is
specific, credible evidence that they have committed a crime.

In the cases we've been discussing, we can say that the odds that any
particular young black or Hispanic man will be hassled by the police are
much higher than for a white man who, aside from his race, is
demographically indistinguishable from him. These minority men, no matter
how law-abiding they are, know that they will be investigated by the police
significantly more often than other citizens who are not members of their
racial group. The social cost of the alienation produced by this situation
cannot, of course, be measured, but common sense tells us that it must be
great.

As important, in the majority of "crimes" that such stops discover, there
is no third party whose rights have been violated, who can step forward and
bring the crime to the attention of the police.

To discover victimless crimes, investigators must become intrusive and
simply poke around wherever they can, trying to see if they can uncover
such a crime.

When someone drives a few pounds of marijuana up I-95 from seller to buyer,
who will come forward and complain?

It's not merely that, as in the cases of robbery or murder, the perpetrator
may try to hide his identity, but that the "crime" has no victim.

Drug War Profiling Practices

Both statistical studies and anecdotal evidence support the view that drug
crimes are the almost exclusive focus of investigation in racial profiling
cases. Hence, The New York Times reported in February that, "The New Jersey
State Police said last week that the number of drug arrests on the Garden
State Parkway and the New Jersey Turnpike fell last year, after the
department came under scrutiny for racial profiling.

The number of drug charges resulting from stops on the turnpike were 370
last year, compared with 494 drug charges in 1999. There were 1,269 charges
filed in 1998. On the parkway, troopers reported 350 drug charges last year
compared with 783 in 1999 and 1,279 in 1998."

The Record, a Bergen, New Jersey, newspaper, obtained state police
documents last fall. One document, used for training, teaches troopers to
zero in on minorities when scanning state roadways for possible drug
traffickers. Titled "Occupant Identifiers for a Possible Drug Courier," the
document instructs troopers to look out for "Colombian males, Hispanic
males, Hispanic and a black male together, Hispanic male and female posing
as a couple." (One's mind boggles at how the police are able to detect that
two Hispanics are "posing" as a couple as they zip by at 60 miles per
hour.) The undated document also teaches troopers how to use supposed
traffic violations, such as "speeding" and "failure to drive within a
single lane," as a pretext to pull over suspected drug couriers.

If police have a goal of maximizing drug arrests, they may indeed find that
they can achieve this most easily by focusing on minorities. Blacks on I-95
in Maryland, for instance, had a significantly higher initial propensity to
carry drugs in the car than did whites. "Racial Bias in Motor Vehicle
Searches: Theory and Evidence," a 1999 study by University of Pennsylvania
professors John Knowles, Nicola Persico, and Petra Todd, shows that despite
the fact that blacks were stopped three-and-a-half times more than whites,
they were as likely to be carrying drugs.

But this doesn't mean their propensity to carry is the same. If we assume
that the high likelihood of being stopped reduces some blacks' willingness
to carry drugs, then if not for the stops, they would have been carrying
proportionally much more than whites. The Penn professors conclude they are
displaying what they call "statistical discrimination" (i.e., the police
are operating on the basis of class probability) rather than racial prejudice.

Perhaps more to the point, they conclude that the police are primarily
motivated by a desire to maximize drug arrests.

Some racial profiling defenders agree that the drug war bears a large part
of the blame for racial profiling. "Many of the stop-and-search cases that
brought this matter into the headlines were part of the so-called war on
drugs," writes Derbyshire. "The police procedures behind them were ratified
by court decisions of the 1980s, themselves mostly responding to the rising
tide of illegal narcotics." But Derbyshire dismisses the argument that
racial profiling is chiefly a byproduct of the drug war. He contends that
even if drugs were legalized tomorrow, the practice would continue.

He is confusing the two forms of police procedure we have outlined above.
The practice of laying out broad dragnets to see what turns up would almost
entirely disappear but for the attempt to stamp out drug trafficking and
use. Derbyshire, to bolster his case, cites the fact that in 1997, "Blacks,
who are 13 percent of the U.S. population, comprised 35 percent of those
arrested for embezzlement." This statistic would be useful if he were
defending the fact that 35 percent of those investigated for embezzling
that year were black.

But does Derbyshire believe that stopping random blacks on an interstate
highway is catching very many embezzlers? Or that, absent the drug war,
cops would start searching cars they pull over for embezzled funds?

How Asset Forfeiture Fuels Profiling

In the 1980s, state legislatures and Congress were frustrated with their
inability to arrest and convict "drug kingpins." So they passed laws that
gave police the power to seize the property of suspected dealers.

The dubious rationale: The "pushers'" property had been purchased through
ill-gotten gains and hence didn't rightly belong to them. (Questions about
establishing actual guilt were brushed aside as counterproductive.) The
federal Comprehensive Crime Act of 1984 was the most important of these
measures, as it allowed local police agencies that cooperated in a drug
investigation to keep the vast majority of the assets seized.

In addition, the Department of Justice decided that police in states that
did not allow their agencies to keep asset forfeiture proceeds could have
the feds "adopt" their seizures.

The Kansas City Star's Karen Dillon has done extensive investigative
reporting on asset forfeiture over the past three years.

She writes: "Wisconsin law mandates that forfeiture money goes to public
schools, but only $16,906 went into Wisconsin's education fund during the
year ending in June 1999, according to the state treasury department.
During just six months of the same period, local law enforcement gave the
federal government $1.5 million in seizures."

In a paper published in the September 2000 issue of the economics journal
Public Choice, "Entrepreneurial Police and Drug Enforcement Policy," Brent
D. Mast, Bruce L. Benson, and David W. Rasmussen report that forfeiture
receipts roughly doubled every year for several years after the passage of
the Comprehensive Crime Act. According to the Sourcebook of Criminal
Justice Statistics, the total value of Drug Enforcement Administration
seizures reached nearly $1 billion in 1992. A large amount of that revenue
flows back from the federal government to state and local police
departments. Dillon notes: "In 1997 and 1998, the St. Louis Metropolitan
Police Department received back more than $2.5 million.

In 1998 alone, the Georgia Bureau of Investigation took back $1.7 million."

A letter to the International Narcotics Interdiction Association (INIA)
from the Richmond Metro Interdiction Unit, posted on INIA's Web site, is
accompanied by a photo of two cops in front of a pile of $298,440. The
letter says: "We took this money off a guy coming from NY to Miami on
Amtrak about two weeks after returning from SKY NARC [an INIA training
session] in Anaheim. It was a great school and as you can see it paid off."

The U.S. Department of Justice reports: "Collectively, local police
departments received $490 million worth of cash, goods, and property from
drug asset forfeiture programs during fiscal 1997. Sheriffs' departments
had total receipts of $158 million."

This kind of money adds a major incentive to police efforts to discover
drug crimes.

The study by Mast, Benson, and Rasmussen concludes: "The results for the
impact of asset seizure laws are robust....Police focus relatively more
effort on drug control when they can enhance their budgets by retaining
seized assets.

Legislation permitting police to keep a portion of seized assets raises
drug arrests as a portion of total arrests by about 20 percent and drug
arrest rates by about 18 percent."

Of course, if the police begin harassing all motorists in a particular
locale, support for their activities will soon evaporate.

However, if they can identify a minority group that is somewhat more likely
to commit a particular drug crime -- and if they know that members of that
group are not politically powerful -- then the police can focus on those
people in order to enhance their departmental revenue.

The usual supposition, that the accused is innocent until proven guilty,
has been explicitly reversed in asset forfeiture cases.

The authorities are not required to prove that a crime, involving the goods
in question, has been committed.

Instead, they must merely have "probable cause" for the seizure; the burden
of proof is on the defendant trying to recover his property. The Schaffer
Library of Drug Policy -- http://www.druglibrary.org/schaffer/ -- has found
that 80 percent of those who have had assets seized are never charged with
a crime, let alone convicted of one. Federal law provides for up to five
years in prison for attempting to prevent one's own property from being
grabbed.

It did not take long for those in law enforcement to conclude that their
best haul would come from seizing goods from citizens who lack the
resources to win them back. In one highly publicized case that occurred in
1991, federal authorities at the Nashville airport took more than $9,000 in
cash from Willie Jones, a black landscaper who was flying to Houston in
order to purchase shrubs.

According to the police, that money could have been used to purchase drugs.

After spending thousands of dollars and two years on the case, the
landscaper was able to convince the courts to return most of the seized cash.

Sam Thach, a Vietnamese immigrant, found himself in a similar situation
last year. He was relieved of $147,000 by the DEA while traveling on
Amtrak. Thach was investigated because the details of his ticket purchase,
which Amtrak shared with the DEA, "fit the profile" of a drug courier.

He was not charged with any crime and is now fighting to retrieve his money
in federal court.

When the University of Pennsylvania study and the study by Mast, Benson,
and Rasmussen are considered in tandem, the implication is clear.

The possibility of rich pickings through asset forfeiture, combined with
the higher propensity for black motorists to carry drugs, provides police
departments with a tremendous incentive to engage in racial profiling.

It is hardly surprising, then, that police take the bait, even at the cost
of racial bias accusations and investigations.

Last year, in reaction to high-profile cases of abuse, Congress passed
legislation that changed the standard in federal civil asset forfeiture
cases. Rather than showing "probable cause" that property was connected to
a crime, the feds must now demonstrate "by a preponderance of the evidence"
that the property was used in or is the product of a crime, a significantly
higher legal standard.

The revised law also awards legal fees to defendants who successfully
challenge property seizures and gives judges more latitude to return seized
property.

Exactly what effect the law will have on federal agents, or on state and
local cops, is not yet clear.

This Is Your Law Enforcement on Drugs

In the panic created by the drug war, our traditional liberties have been
eroded. Rather than regarding case probability as a necessary component of
probable cause for searches or seizures, the American law enforcement
system has now come to accept class probability as sufficient justification
for many intrusions.

Unfortunately, the current protests against racial profiling are not
addressing the root causes of the practice.

Politicians, eager to please voters, have created potentially greater
problems by trying to suppress the symptoms. As John Derbyshire points out,
the laws rushed onto the books to end racial profiling result in severe
obstacles to police officers attempting to investigate serious crimes.

He notes, "In Philadelphia, a federal court order now requires police to
fill out both sides of an 8-1/2-by-11 sheet on every citizen contact."
Unless our solution to this problem addresses its cause, we will be faced
with the choice of either hindering important police work or treating some
of our citizens, based on characteristics (race, age, and so on) completely
beyond their control, in a manner that is patently unfair.

If we really wish to end the scourge of racial profiling, we must address
its roots: drug laws that encourage police to consider members of broad
groups as probable criminals.

We must redirect law enforcement toward solving specific, known crimes
using the particular evidence available to them about that crime.

Whatever one's opinion on drug legalization may be, it's easy to agree that
the state of seizure law in America is reprehensible, even given last
year's minor federal reforms.

It should be obvious that there's something nutty about a legal system that
assumes suspects in murder, robbery, and rape cases are innocent until a
trial proves otherwise, but assumes that a landscaper carrying some cash is
guilty of drug trafficking.

Drugs, prohibitionists commonly point out, can damage a user's mind. They
apparently can have the same effect on the minds of law enforcement officials.

Gene Callahan -- gcallah@erols.com -- has written for Ideas on Liberty,
National Review Online, Slick Times, Java Developer's Journal, and Software
Development. His book Economics for Real People will be published later
this year by the Ludwig von Mises Institute.

William Anderson - anderwl@prodigy.net -- is an assistant professor of
economics at Frostburg State University in Maryland and an adjunct scholar
at the Ludwig von Mises Institute.