The Case Against Racial Profiling
A. The Assumptions Underlying Racial Profiling
Defenders of racial profiling argue that it is a rational response to patterns of criminal behavior.
In the context of street-level crime, this argument rests on the assumption that minorities—used in this context to refer to African Americans and Hispanics—commit most drug-related and other street-level crimes, and that many, or most, street-level criminals are in turn African Americans and Hispanics. Thus, the argument continues, it is a sensible use of law enforcement resources to target African Americans and Hispanics in this context. This assumption is false.
The empirical data presented in Chapter III (A) of this report reveal that "hit rates" (i.e., the discovery of contraband or evidence of other illegal conduct) among African Americans and Hispanics stopped and searched by the police—whether driving or walking—are lower than or similar to hit rates for Whites who are stopped and searched. These hit rate statistics render implausible any defense of racial profiling on the ground that African Americans and Hispanics commit more drug-related or other street-level crimes than Whites.110
The basic assumption underlying racial profiling in the counterterrorism context, predominantly at airports and border crossings, is the same as that underlying the practice in the street-level crime context—i.e., that a particular crime (in this context, terrorism) is most likely to be committed by members of a particular racial, ethnic or religious group (in this context, Arabs and Muslims), and that members of that group are, in general, more likely than non-members to be involved in that type of criminal activity. As in the street-level crime context, this assumption is false.
While all the men involved in the 9/11 hijackings were Arab nationals from Muslim countries, terrorist acts are not necessarily perpetrated by Arabs or Muslims. Richard Reid, who on December 22, 2001, tried to ignite an explosive device on a trans-Atlantic flight, was a British citizen of Jamaican ancestry. Prior to 9/11, the bloodiest act of terrorism on U.S. soil was perpetrated by Timothy McVeigh, a White American citizen. And non-Arabs such as John Walker Lindh can be found in the ranks of the Taliban, al Qaeda, and other terrorist organizations. As former U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff explained following the December 2001 bomb attempt by Richard Reid:
Well, the problem is that the profile many people think they have of what a terrorist is doesn't fit the reality. Actually, this individual probably does not fit the profile that most people assume is the terrorist who comes from either South Asia or an Arab country. Richard Reid didn't fit that profile. Some of the bombers or would-be bombers in the plots that were foiled in Great Britain don't fit the profile. And in fact, one of the things the enemy does is to deliberately recruit people who are Western in background or in appearance, so that they can slip by people who might be stereotyping.111
The assumption that underlies the use of racial profiling in the effort to enforce immigration laws is the same as that which underlies its use in the street-level crime and counterterrorism contexts—i.e., that most of the people who are in this country without authorization are members of a particular racial or ethnic group, and that members of that particular racial or ethnic group are therefore more likely to be in this country without documentation than are non-members. Although, since 9/11, Arabs and Muslims have been subjected to selective and unfair enforcement of the immigration laws, racial profiling in the immigration context traditionally has been, and remains today, aimed primarily at Hispanics.
Although the Supreme Court has held that race, ethnicity, and national origin cannot be the sole factors giving rise to a law enforcement stop for suspected immigration law violations,112 the Court has indicated that there may be certain situations in which it is constitutional for a law enforcement stop to be partially based on such considerations. Specifically, in United States v. Martinez-Fuente (1976), which involved fixed inspection checkpoints near the Mexican border, the Court concluded that the population demographics were such as to allow law enforcement stops to be partially based on race.113
Because racial profiling in the immigration context may be constitutionally permissible under certain limited circumstances does not in any way justify its use. Even if the population demographics in a particular community make it likely that most undocumented immigrants are Hispanic, it does not follow that many, or most, Hispanics in that community are undocumented immigrants. To the contrary, the overwhelming majority of Hispanics in the United States are U.S. citizens or legal residents.114 And the adverse consequences of the use of racial profiling for the individuals who are subject to it, and for effective law enforcement—consequences that are discussed below—argue forcefully against the use of any form of racial profiling in any context.
B. The Consequences of Racial Profiling
Racial profiling forces individuals who have engaged in no wrongdoing to endure the burdens of law enforcement in order to prove their innocence. For each criminal, terrorist, or undocumented immigrant apprehended through racial profiling, many more lawabiding minorities are treated through profiling as if they are criminals, terrorists, or undocumented immigrants.
The 2009 experience of Elvis Ware, a 36 year-old African-American veteran of Operation Desert Storm, is illustrative of the humiliation and stress experienced by a person who has been a victim of racial profiling. In 2009, police in Detroit, Michigan, conducted a stopand- frisk of Ware. While in a public parking lot, one officer "shoved his bare hand down Ware's pants and squeezed his genitals and then attempted to stick a bare finger into Ware's anus." Other young men of African descent report that the same two officers who stopped Ware conducted similar outrageous and inappropriate searches on them without warrants, probable cause, or reasonable suspicion. In accepting a settlement from the city of Detroit that included monetary damages, Ware said, "I not only wanted justice for myself, but I wanted it for others who were treated this way…. If, by coming forward, I prevent just one person from having to go through this, I have succeeded."115
Ware's humiliation is not unique. Texas State Judge Gillberto Hinajosa, the subject of immigration-related profiling on many occasions, has stated that Southern Texas "feels like occupied territory … It does not feel like we're in the United States of America."116 Such alienation is a common consequence of being profiled.
Exposure to racial profiling has behavioral as well as emotional consequences. Many minorities who are entirely innocent of any wrongdoing choose to drive in certain automobiles and on certain routes, or to dress in certain clothes, to avoid drawing the attention of police who might otherwise profile and stop them.117 Or they choose to live in areas where they will not stand out as much, thereby reinforcing patterns of residential segregation.118
An example of behavioral changes in an effort to avoid racial profiling in the counterterrorism context is provided by Khaled Saffuri. Saffuri, a Lebanese man living in Great Falls, Virginia, has said that he shaves closely and wears a suit when he flies, then remains silent during flights and avoids using the aircraft's bathroom. Sometimes he avoids flying altogether in favor of long drives to his destination.119
Defenders of racial profiling argue that profiling is necessary and useful in the effort by law enforcement authorities to fight street-crime, combat terrorism, and enforce the nation's immigration laws. The opposite is true: racial profiling is in all contexts a flawed law enforcement tactic that may increase the number of people who are brought through the legal system, but that actually decreases the hit rate for catching criminals, terrorists, or undocumented immigrants. There are two primary reasons for this.
To begin with, racial profiling is a tactic that diverts and misuses precious law enforcement resources. This became clear in 1998 when the U.S. Customs Service responded to a series of discrimination complaints by eliminating the use of race in its investigations and focusing solely on suspect behavior. A study found that this policy shift led to an almost 300 percent increase in the discovery of contraband or illegal activity.120
Consider the inefficient allocation of scarce police resources in New Jersey when, as described in Chapter III (C) of this report local law enforcement authorities stopped tens of thousands of Hispanic motorists, pedestrians, passengers, and others in a six-month period. Just 1,417 of the tens of thousands stopped were ultimately charged with immigration offenses by the federal government.121
Or, consider the April 2008 assault by more than 100 Maricopa County, Arizona deputies, a volunteer posse, and a helicopter on a small town of 6,000 Yaqui Indians and Hispanics outside of Phoenix, as described in Chapter III (C) above. After terrorizing the residents for two days, stopping residents and chasing them into their homes to conduct background checks, Sheriff Joe Arpaio's operation resulted in the arrest of just nine undocumented immigrants.122
Turning to the counterterrorism context, the use of racial profiling—and the focus on the many Arabs, Muslims, Sikhs, and other South Asians who pose no threat to national security—diverts law enforcement resources away from investigations of individuals who have been linked to terrorist activity by specific and credible evidence.
A memorandum circulated to U.S. law enforcement agents worldwide by a group of senior law enforcement officials in October 2002 makes clear that race is an ineffective measure of an individual's terrorist intentions. The memorandum, entitled "Assessing Behaviors," emphasized that focusing on the racial characteristics of individuals was a waste of law enforcement resources and might cause law enforcement officials to ignore suspicious behavior, past or present, by someone who did not fit a racial profile.123 One of the authors of the report noted: "Fundamentally, believing that you can achieve safety by looking at characteristics instead of behaviors is silly. If your goal is preventing attacks … you want your eyes and ears looking for preattack behaviors, not characteristics."124
In sum, ending racial profiling will result in the more efficient deployment of law enforcement resources. As David Harris, a professor of law at the University of Pittsburgh Law School and a recognized expert on racial profiling, explained in his June 2010 testimony before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives Judiciary Committee:
From those who advocate racial profiling, one frequently hears what we may call the profiling hypothesis: we know who the criminals are and what they look like, because we know what societal groups they come from; therefore using racial or ethnic appearance will allow police to better target their enforcement efforts; and when police target those efforts, they will be more effective, because they will get higher rates of "hits"—finding guns, drugs, criminals—than when they do not use racial targeting … [T]he data do not support the profiling hypothesis; the data contradict it. It is not, in fact, an effective crime-fighting strategy.
The reasons for these results originate with what profiling is supposed to be: a predictive tool that increases the odds of police finding the "right" people to stop, question, or search. Using race or ethnic appearance as part of a description of a person seen by a witness is absolutely fine, because that kind of information helps police identify a particular individual. On the other hand, using race as a predictor of criminal behavior, in situations in which we do not yet know about the criminal conduct—for example, when we wonder which of the thousands of vehicles on a busy highway is loaded with drugs, or which passenger among tens of thousands in an airport may be trying to smuggle a weapon onto an airplane—throws police work off. That is because using race or ethnic appearance as a short cut takes the eye of law enforcement off of what really counts. And what really matters in finding as-yet-unknown criminal conduct is the close observation of behavior. Paying attention to race as a way to more easily figure out who is worthy of extra police attention takes police attention off of behavior and focuses it on appearance, which predicts nothing.125
An additional reason why racial profiling is not an effective law enforcement tactic is that it destroys the relationship between local law enforcement authorities and the communities that they serve. This is particularly true with regard to the enforcement of federal immigration laws by local police under the 287(g) program and other ICE ACCESS programs.
When local police function as rogue immigration agents, fear—as opposed to trust—is created in Hispanic and other immigrant communities. U.S. born children with parents who are either U.S. citizens or lawful residents may avoid coming in contact with police or other public officials (including school officials) out of concern that they, their parents, or family members will be targeted by local law enforcement authorities for a check of their immigration status. Victims of domestic violence who are immigrants may fear interacting with the police because of their immigration status, or the status of their families, or even their abusers, and the consequences of that fear can leave them in dangerous and violent situations. Respect and trust between law enforcement authorities and immigrant communities are essential to successful police work.
Racial profiling has a destructive impact on minority communities. How many community members will step up to be "Good Samaritans" and report crimes or accidents, or offer help to a victim until the police arrive, if the risk of doing the good deed is an interaction with a police officer that may result in a background check or challenge to immigration status? Perversely, the ultimate result of racial profiling in minority communities is precisely the opposite of the goal of effective local law enforcement. It is for this reason that many police executives and police organizations have expressed concern that the enforcement of the immigration laws by local law enforcement authorities has a "negative overall impact on public safety."126
The use of racial profiling in the counterterrorism context—as in the immigration context—alienates the very people that federal authorities have deemed instrumental in the anti-terrorism fight. Arab and Muslim communities may yield useful information to those fighting terrorism. Arabs and Arab Americans also offer the government an important source of Arabic speakers and translators. The singling out of Arabs and Muslims for investigation regardless of whether any credible evidence links them to terrorism simply alienates these individuals and compromises the anti-terrorism effort. In particular, to the extent that federal authorities use the anti-terrorism effort as a pretext for detaining or deporting immigration law violators, individuals who might have information that is useful in the fight against terrorism may be reluctant to come forward. For a special registration program such as NSEERS, those individuals will choose not to register, thereby defeating the very purpose of the program.127
Professor Harris made this point in his June 2010 congressional testimony, when he stated that racial profiling "drives a wedge between police and those they serve, and this cuts off the police officer from the most important thing the officer needs to succeed: information."128 As he explained:
For more than two decades, the mantra of successful local law enforcement has been community policing. One hears about community policing efforts in every state. The phrase means different things in different police agencies. But wherever community policing really takes root, it comes down to one central principle: the police and the community must work together to create and maintain real and lasting gains in public safety. Neither the police nor the public can make the streets safe by themselves; police work without public support will not do the whole job. The police and those they serve must have a real partnership, based on trust, dedicated to the common goal of suppressing crime and making the community a good place to live and work. The police have their law enforcement expertise and powers, but what the community brings to the police—information about what the real problems on the ground are, who the predators are, and what the community really wants—can only come from the public. Thus the relationship of trust between the public and the police always remains of paramount importance. This kind of partnership is difficult to build, but it is neither utopian nor unrealistic to strive for this kind of working relationship. In other words, this is not an effort to be politically correct or sensitive to the feelings of one or another group. Thus these trust-based partnerships are essential for public safety, and therefore well worth the effort to build.
When racial profiling becomes common practice in a law enforcement agency, all of this is put in jeopardy. When one group is targeted by police, this erodes the basic elements of the relationship police need to have with that group. It replaces trust with fear and suspicion. And fear and suspicion cut off the flow ofcommunication. This is true whether the problem we face is drug dealers on the corner, or terrorism on our own soil. Information from the community is the one essential ingredient of any successful effort to get ahead of criminals or terrorists; using profiling against these communities is therefore counterproductive.129
Because racial profiling diverts precious law enforcement resources and destroys the relationship between local law enforcement authorities and the communities they serve, it is a flawed method of law enforcement in any context. But it is particularly ineffective in the counterterrorism context for two additional reasons.
First, even if one accepts the false assumption that terrorists are likely to be Arabs or Muslims, the application of the profile is fraught with error. The profile of a terrorist as an Arab or Muslim has been applied to individuals who are neither Arab nor Muslim (e.g., Sikhs and other South Asians). Profiling of Arabs and Muslims amounts to selective enforcement of the law against anyone with a certain type of "swarthy" foreign-looking appearance even if they do not in fact fit the terrorist profile. The profile is then useless in fighting terrorism, as well as offensive to an ever-broadening category of persons.
Second, using racial profiling in the counterterrorism context is a classic example of refighting the last war. Al Qaeda and other terrorist organizations are pan-ethnic: they include Asians, Anglos, and ethnic Europeans. They are also adaptive organizations that will learn how to use non-Arabs such as Richard Reid to carry out terrorists attacks, or to smuggle explosive devices onto planes in the luggage of innocent people. Chertoff, the former DHS secretary made this point when, in his statement following the bomb attempt by Reid, he observed that "one of the things the enemy does is to deliberately recruit people who are Western in background or in appearance so that they can slip by people who might be stereotyping."130 In short, the fact that the 9/11 hijackers were Arabs means little in predicting who the next terrorists will be. In a situation analogous to the one facing Arabs and Muslims today, the 10 individuals found to be spying for Japan during World War II were not Japanese or Asian, but Caucasian. They clearly did not fit the profile that caused America to order the internment of thousands of Japanese Americans.131 Racial profiling in any case is a crude mechanism; against an enemy like al Qaeda, it is virtually useless.