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 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 (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. (See "Railway Bandits," Citings, July.)

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.

Note:
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.