PROFILING: A SELF-FULFILLING RACIST POLICY

As a law professor who has done a considerable amount of research and
writing concerning the impact of "profile" traffic stops on
African-Americans and other racial and ethnic minority groups, I
respond to Jackson Toby's March 11 editorial-page commentary "Racial
Profiling Doesn't Prove Cops Are Racist."

In his zeal to show that police are not racists, Mr. Toby concedes
that police do indeed stop disproportionate numbers of
African-Americans on the highways in an effort to ferret out drug
trafficking. His argument is that this is not racism, but efficiency.
Blacks are only 12% of the population, he argues, but they are
over-represented among those arrested for crimes ranging from murder
to larceny. Therefore, police who want to catch people involved with
drugs target blacks in order to catch more bad guys--what one might
call "rational discrimination."

When examined closely, Mr. Toby's thinking is at best flawed and at
worst the product of dangerous and costly racial stereotyping. First,
he bases his efficiency argument for catching drug traffickers on
statistics involving seven different crimes--but not drug trafficking.
By inviting us to make the unsubstantiated assumption that blacks are
also disproportionately involved with drugs (an assumption directly
contradicted by available evidence he doesn't mention), Mr. Toby
perpetuates the image of all blacks as drug users and sellers. His
casual characterization of black children as "more tempted to break
society's rules" has the same damaging effect.

Mr. Toby's use of arrest data is just as misleading. Yes, it is true
that blacks are disproportionately arrested for certain crimes. But
there is a strong relationship between looking for things and finding
them. If police stop disproportionate numbers of black drivers, of
course they will find evidence of crime on a disproportionate number
of black drivers. Thus his view becomes a self-fulfilling prophecy:
More blacks are arrested, so more blacks are criminals, so to catch
more criminals, stop more blacks, which leads to more blacks arrested.

Mr. Toby is correct that there is "a civil-liberties cost" to
raced-based policing: a large number of law-abiding, tax-paying,
hard-working African-American citizens will be subjected to encounters
with the police that are often difficult, frightening and humiliating.
But he feels this is a price worth paying. Yet we would never tolerate
this kind of "rational discrimination" in other areas of life. If law
enforcement adopts his way of thinking, efficiency would allow police
to stop every black person; in effect, blackness would become a proxy
for criminal involvement, and all African-Americans would be suspects
every time they leave their homes.

David A. Harris
Visiting Professor of Law
University of Michigan Law School
Ann Arbor, Mich.