YOU CAN'T JUDGE A CROOK BY HIS COLOR

Racial Profiling May Be Justified, But It's Still Wrong

In Kansas City, a Drug Enforcement Administration officer stops and
questions a young man who has just stepped off a flight from Los
Angeles. The officer has focused on this man because intelligence
reports indicate that black gangs in L.A. are flooding the Kansas City
area with illegal drugs. Young, toughly dressed, and appearing
nervous, he paid for his ticket in cash, checked no luggage, brought
two carryon bags, and made a beeline for a taxi when he arrived. Oh,
and one other thing: The young man is black. When asked why he decided
to question this man, the officer declares that he considered race,
along with other factors, because doing so helps him allocate limited
time and resources efficiently.

Should we applaud the officer's conduct? Permit it? Prohibit it? This
is not a hypothetical example. Encounters like this take place every
day, all over the country, as police battle street crime, drug
trafficking, and illegal immigration. And this particular case study
happens to be the real life scenario presented in a federal lawsuit of
the early `90s, United States v. Weaver, in which the 8th U.S. Circuit
Court of Appeals upheld the constitutionality of the officer's action.

"Large groups of our citizens," the court declared, "should not be
regarded by law enforcement officers as presumptively criminal based
upon their race." The court went on to say, however, that "facts are
not to be ignored simply because they may be unpleasant." According to
the court, the circumstances were such that the young man's race,
considered in conjunction with other signals, was a legitimate factor
in the decision to approach and ultimately detain him. "We wish it
were otherwise," the court maintained, "but we take the facts as they
are presented to us, not as we would like them to be." Other courts
have agreed that the Constitution does not prohibit police from
considering race, as long as they do so for bona fide purposes of law
enforcement (not racial harassment) and as long as it is only one of
several factors.

These decisions have been welcome news to the many law enforcement
officials who consider what has come to be known as racial profiling
an essential weapon in the war on crime. They maintain that, in areas
where young African American males commit a disproportionate number of
the street crimes, the cops are justified in scrutinizing that sector
of the population more closely than others just as they are generally
justified in scrutinizing men more closely than they do women.

As Bernard Parks, chief of the Los Angeles Police Department, explained
to Jeffrey Goldberg of The New York Times Magazine: "We have an issue
of violent crime against jewelry salespeople.... The predominant
suspects are Colombians. We don't find Mexican Americans, or blacks, or
other immigrants. It's a collection of several hundred Colombians who
commit this crime. If you see six in a car in front of the Jewelry
Mart, and they're waiting and watching people with briefcases, should
we play the percentages and follow them? It's common sense".

Cops like Parks say that racial profiling is a sensible, statistically
based tool. Profiling lowers the cost of obtaining and processing
crime information, which in turn lowers the overall cost of doing the
business of policing. And the fact that a number of cops who support
racial profiling are black, including Parks, buttresses claims that
the practice isn't motivated by bigotry. Indeed, these police officers
note that racial profiling is race neutral in that it can be applied to
persons of all races, depending on the circumstances. In predominantly
black neighborhoods in which white people stick out (as potential drug
customers or racist hooligans, for example), whiteness can become part
of a profile. In the southwestern United States, where Latinos often
traffic in illegal immigrants, apparent Latin American ancestry can
become part of a profile.

But the defenders of racial profiling are wrong. Ever since the Black
and Latino Caucus of the New Jersey Legislature held a series of
hearings, complete with testimony from victims of what they claimed
was the New Jersey state police force's overly aggressive racial
profiling, the air has been thick with public denunciations of the
practice. In June 1999, at a forum organized by the Justice Department
on racial problems in law enforcement, President Clinton condemned
racial profiling as a "morally indefensible, deeply corrosive
practice." Vice President Al Gore has promised that, if he is elected
president, he will see to it that the first civil rights act of the
new century would end racial profiling. His rival for the Democratic
nomination, Bill Bradley, has countered that Gore should prepare an
executive order and ask the president to sign it now.

Unfortunately, though, many who condemn racial profiling do so without
really thinking the issue through. One common complaint is that using
race (say, blackness) as one factor in selecting surveillance targets
is fundamentally racist. But selectivity of this sort can be defended
on nonracist grounds. "There is nothing more painful to me at this
stage in my life," Jesse Jackson said in 1993, "than to walk down the
Street and hear footsteps and start to think about robbery and then
look around and see somebody white and feel relieved." Jackson was
relieved not because he dislikes black people, but because he
estimated that he stood a somewhat greater risk of being robbed by a
black person than by a white person. Statistics confirm that African
Americans particularly young black men commit a dramatically
disproportionate share of street crime in the United States. This is a
sociological fact, not a figment of a racist media (or police)
imagination. In recent years, victims report blacks as perpetrators of
around 25 percent of violent crimes, although blacks constitute only
about 12 percent of the nation's population.

So, if racial profiling isn't bigoted, and if the empirical claim upon
which the practice rests is sound, why is it wrong?

Racial distinctions are and should be different from other lines of
social stratification. That is why, since the civil rights revolution
of the 1960s, courts have typically ruled based on the 14th Amendment's
equal protection clause that mere reasonableness is an insufficient
justification for officials to discriminate on racial grounds. In such
cases, courts have generally insisted on applying "strict scrutiny" the
most intense level of judicial review to government actions. Under this
tough standard, the use of race in governmental decision making may be
upheld only if it serves a compelling government objective and only if
it is "narrowly tailored" to advance that objective.

A disturbing feature of this debate is that many people, including
judges, are suggesting that decisions based on racial distinctions do
not constitute unlawful racial discrimination as long as race is not
the only reason a person was treated objectionably. The court that
upheld the DEA agent's action at the Kansas City airport, for
instance, declined to describe it as racially discriminatory and thus
evaded strict scrutiny.

But racially discriminatory decisions typically stem from mixed
motives. For example, an employer who prefers white candidates to
black candidates except for those black candidates with superior
experience and test scores is engaging in racial discrimination, even
though race is not the only factor he considers (since he selects
black superstars). In some cases, race is a marginal factor; in others
it is the only factor. The distinction may have a bearing on the moral
or logical justification, but taking race into account at all means
engaging in discrimination.

Because both law and morality discourage racial discrimination,
proponents should persuade the public that racial profiling is
justifiable. Instead, they frequently neglect its costs and minimize
the extent to which it adds to the resentment blacks feel toward the
law enforcement establishment. When O.J. Simpson was acquitted, many
recognized the danger of a large sector of Americans feeling cynical
and angry toward the system. Such alienation creates witnesses who
fail to cooperate with police, citizens who view prosecutors as the
enemy, lawyers who disdain the rules they have sworn to uphold, and
jurors who yearn to get even with a system that has, in their eyes,
consistently mistreated them. Racial profiling helps keep this pool of
accumulated rage filled to the brim.

The courts have not been sufficiently mindful of this risk. In
rejecting a 1976 constitutional challenge that accused U.S. Border
Patrol officers in California of selecting cars for inspection partly
on the basis of drivers' apparent Mexican ancestry, the Supreme Court
noted in part that, of the motorists passing the checkpoint, fewer
than 1 percent were stopped. It also noted that, of the 820 vehicles
inspected during the period in question, roughly 20 percent contained
illegal aliens.

Justice William J. Brennan dissented, however, saying the Court did
not indicate the ancestral makeup of all the persons the Border Patrol
stopped. It is likely that many of the innocent people who were
questioned were of apparent Mexican ancestry who then had to prove
their obedience to the law just because others of the same ethnic
background have broken laws in the past.

The practice of racial profiling undercuts a good idea that needs more
support from both society and the law:

Individuals should be judged by public authorities on the basis of
their own conduct and not on the basis of racial generalization.
Race dependent policing retards the development of bias free thinking;
indeed, it encourages the opposite.

What about the fact that in some communities people associated with a
given racial group commit a disproportionately large number of crimes?
Our commitment to a just social order should prompt us to end racial
profiling even if the generalizations on which the technique is based
are supported by empirical evidence. This is not as risky as it may
sound. There are actually many contexts in which the law properly
enjoins us to forswear playing racial odds even when doing so would
advance legitimate goals.

For example, public opinion surveys have established that blacks
distrust law enforcement more than whites. Thus, it would be
rational and not necessarily racist for a prosecutor to use ethnic
origin as a factor in excluding black potential jurors. Fortunately,
the Supreme Court has outlawed racial discrimination of this sort. And
because demographics show that in the United States, whites tend to
live longer than blacks, it would be perfectly rational for insurers
to charge blacks higher life insurance premiums. Fortunately, the law
forbids that, too.

The point here is that racial equality, like all good things in life,
costs something. Politicians suggest that all Americans need to do in
order to attain racial justice is forswear bigotry. But they must also
demand equal treatment before the law even when unequal treatment is
defensible in the name of nonracist goals and even when their effort
will be costly.

Since abandoning racial profiling would make policing more expensive
and perhaps less effective, those of us who oppose it must advocate a
responsible alternative. Mine is simply to spend more money on other
means of enforcement and then spread the cost on some nonracial basis.
One way to do that would be to hire more police officers. Another way
would be to subject everyone to closer surveillance. A benefit of the
second option would be to acquaint more whites with the burden of
police intrusion, which might prompt more of them to insist on
limiting police power. As it stands now, the burden is unfairly placed
on minorities imposing on Mexican Americans, blacks, and others a
special kind of tax for the war against illegal immigration, drugs,
and other crimes. The racial element of that tax should be repealed.

I'm not saying that police should never be able to use race as a
guideline. If a young white man with blue hair robs me, the police
should certainly be able to use a description of the perpetrator's
race. In this situation, though, whiteness is a trait linked to a
particular person with respect to a particular incident. It is not a
free floating accusation that hovers over young white men practically
all the time which is the predicament young black men currently face.
Nor am I saying that race could never be legitimately relied upon as a
signal of increased danger. In an extraordinary circumstance in which
plausible alternatives appear to be absent, officials might need to
resort to racial profiling. This is a far cry from routine profiling
that is subjected to little scrutiny.

Now that racial profiling is a hot issue, the prospects for policy
change have improved. President Clinton directed federal law
enforcement agencies to determine the extent to which their officers
focus on individuals on the basis of race. The Customs Service is
rethinking its practice of using ethnicity or nationality as a basis
for selecting subjects for investigation. The Federal Aviation
Administration has been reevaluating its recommended security
procedures; it wants the airlines to combat terrorism with computer
profiling, which is purportedly less race based than random checks by
airport personnel. Unfortunately, though, a minefield of complexity
lies beneath these options. Unless we understand the complexities,
this opportunity will be wasted.

To protect ourselves against race based policing requires no real
confrontation with the status quo, because hardly anyone defends
police surveillance triggered solely by race. Much of the talk about
police "targeting" suspects on the basis of race is, in this sense,
misguided and harmful. It diverts attention to a side issue. Another
danger is the threat of demagoguery through oversimplification. When
politicians talk about "racial profiling," we must insist that they
define precisely what they mean. Evasion putting off hard decisions
under the guise of needing more information is also a danger.

Even if routine racial profiling is prohibited, the practice will not
cease quickly. An officer who makes a given decision partly on a
racial basis is unlikely to acknowledge having done so, and
supervisors and judges are loath to reject officers' statements.
Nevertheless, it would be helpful for President Clinton to initiate a
strict antidiscrimination directive to send a signal to conscientious,
law abiding officers that there are certain criteria they ought not
use.

To be sure, creating a norm that can't be fully enforced isn't ideal,
but it might encourage us all to work toward closing the gap between
our laws and the conduct of public authorities. A new rule prohibiting
racial profiling might be made to be broken, but it could set a new
standard for legitimate government.