A. Forms of Traditional Profiling
1. "Driving While Black or Brown"
The practice of racial profiling can take many forms, the most notorious of which is the "driving while Black" phenomenon illustrated by the Robert Wilkins case. In this scenario, law enforcement agents use selective enforcement of traffic laws as a pretext for stopping and searching Black motorists, who, according to the law enforcement rationale, are particularly likely to be engaged in illegal drug activity. As Alberto Lovato's story demonstrates, Hispanic motorists have also drawn unwarranted attention from the police ("driving while brown"). This is especially true in border areas where enforcement of the drug laws dovetails with enforcement of the immigration laws.18 And, as demonstrated by the account of the Indian American motorist described above, Arabs, Muslims, Sikhs, and South Asians have increasingly come under suspicion for "driving while Arab" since September 11.
For decades, the "driving while Black or brown" phenomenon was well known in the minority population, but largely unnoticed among other Americans. But beginning in the 1990's, empirical evidence emerged to support the anecdotal accounts of racial profiling on America's highways. This evidence demonstrated that Black and other minority motorists were and are being stopped at a rate far out of proportion to their presence in the overall population or on the highways. For example:
- A U.S. Department of Justice report on police contacts with the public concluded that in 1999, African Americans were 20 percent more likely to be stopped than White Americans, and 50 percent more likely than Whites to have experienced more than one stop.19 Police were more than twice as likely to search an African American or Hispanic driver than a White driver.20
- In the three-year period from January 1995 to December 1997, Blacks comprised more than 70 percent of the drivers stopped and searched by the Maryland State Highway Patrol, although they made up only 17.5 percent of the overall drivers (and overall speeders).21 These disparities were explained by a state document called the "Criminal Intelligence Report," which contained an explicit policy targeting Black motorists.22
A study of traffic stops on the New Jersey Turnpike between 1988-1991 found that Blacks were 35 percent of those stopped, though only 13.5 percent of the cars on the turnpike had a Black occupant and Blacks were only 15 percent of all traffic violators.23 A 1999 State Attorney General's Report studying Turnpike stops and searches in 1997-1998 concluded that almost 80 percent of searches involved Blacks and other minorities.24
In the early 1990's, an investigation of the practices of the Volusia County, Florida Sheriff's Department revealed that although Blacks or Hispanics were only five percent of the drivers on a portion of I-95 that ran through the county, they were nearly 70 percent of drivers stopped on that stretch of highway. Blacks and Hispanics were not only stopped more than Whites, they were also stopped for longer periods of time than Whites.25
Recent studies confirm the persistence of the "driving while Black or brown" phenomenon. LAPD data for the period July-November 2002 reveals that while Blacks comprised only 10 percent of the overall population of Los Angeles, they were 18 percent of those subjected to traffic stops. Moreover, 22 percent of Blacks who were stopped were asked to step out of their cars, as compared to only seven percent of Whites stopped. Once out of their cars, 67 percent of Blacks were patted down and 85 percent subjected to a body search. Fifty-five percent of Hispanics removed from their cars were patted down and 84 percent searched. By contrast, only 50 percent of Whites were patted down and 71 percent searched.26
Statistics from Massachusetts for the period April 2001-November 2002 are consistent with these findings. Black and Hispanic drivers in the state were ticketed at about twice their share of the population (10 percent of the ticketed versus 4.6 percent of the population for Blacks, 9.6 percent of the ticketed versus 5.6 percent of the population for Hispanics). After ticketing, Blacks and Hispanics were 50 percent more likely than Whites to have their cars searched.27
A study of 2001 traffic stops in San Diego found similar results. African Americans comprise seven percent of the city's estimated driving population, but are 10 percent of those stopped and 16 percent of those searched. Hispanics comprise 22 percent of the driving population, but are 28 percent of those stopped and 50 percent of those searched. Whites, by contrast, are 55 percent of San Diego's driving population, but only 50 percent of those stopped and 29 percent of those searched.28 Finally, vehicle searches made by the Colorado State Patrol in 2002 revealed disproportionate targeting of Hispanics: Hispanics were thirty-three percent of those searched, though only 17 percent of Colorado's population is Hispanic.29
While these studies all focus on state or local law enforcement agencies, the United States government bears significant responsibility for the "driving while Black or brown" phenomenon. The Volusia County program discussed above was part of a network of drug interdiction programs established and funded by federal authorities under the name "Operation Pipeline." Law enforcement officers participating in Operation Pipeline were encouraged by federal authorities to use race as a factor in determining who might be involved in illegal drug activity.30 And it was the Drug Enforcement Agency that encouraged New Mexico state police to use a "cocaine courier profile," one element of which was that "[t]he vehicle occupants are usually resident aliens from Colombia."31
Traffic stops account for 52 percent of contacts between police and American citizens.32 Disparities in vehicle stops and searches therefore are instrumental in defining the treatment of minorities by law enforcement generally and informing perceptions of the fairness of the criminal justice system.
2. "Stop and Frisk" Tactics
Just as minority motorists are subject to profiling, so too are minority pedestrians. This is especially true with the advent of community-based policing strategies, which often provide street level law enforcement officers with wide discretion to "clean up" the communities they patrol by whatever means seem expedient. As Professor Angela Davis has noted, "The practical effect of this deference [to law enforcement discretion] is the assimilation of police officers' subjective beliefs, biases, hunches, and prejudices into law."33 And, as in the motor vehicle context, such discretion in the pedestrian context is exercised to the detriment of minorities, who are perceived to pose a threat to public safety even if they have done nothing wrong. African American Harvard Law Professor Charles Ogletree says, "If I'm dressed in a knit cap and hooded jacket, I'm probable cause."34
The "stop and frisk" practices of the New York City Police Department in the 1990's demonstrate how community policing can turn into racial profiling. Predictably, Black and Hispanic New Yorkers were disproportionately targeted for stop and frisk patdowns. A December 1999 report by the New York State Attorney General found that of the 175,000 stops engaged in by NYPD officers from January 1988 through March 1999, almost 84 percent were of Blacks and Hispanics, despite the fact that those groups made up less than half of New York City's population. By contrast, only 13 percent of the stops were of White New Yorkers, who make up 43 percent of the city's population. The state Attorney General also identified racial disparities in stop rates within White neighborhoods - in precincts that were approximately 90 percent White, more than 53 percent of the total stops were of Blacks and Hispanics. Thus, more stops of minorities occurred in general in the city, and more stops of minorities than of Whites occurred even in majority-White neighborhoods.35
Recent pedestrian stop statistics from Los Angeles are consistent with those from New York City. While Blacks make up only 11 percent of the population of Los Angeles, they were subjected to 36 percent of the pedestrian stops. Meanwhile Whites, who make up 30 percent of the city's population, were subjected to only 18 percent of the stops. Only 24 percent of Whites who were stopped in Los Angeles were searched, while nearly half of Blacks and Hispanics stopped were searched. Overall, Whites were 11 percent of those searched, Blacks 40 percent, and Hispanics 46 percent.36
Racial profiling of pedestrians in New York has contributed to several well-publicized tragedies in recent years. Amadou Diallo was a young Black man living in a predominantly minority neighborhood in New York City. On the night of February 4, 1999, Diallo was approached by four NYPD officers as he stood by the front steps of his apartment building. He reached for his wallet to produce identification, and the police officers, thinking that Diallo was reaching for a gun, fired 41 gunshots and killed him. Testifying in his own defense, one of the officers who shot Diallo noted that "[t]he way he was peering up and down the block" had made the officers suspicious. "He stepped backward, back into the vestibule as we were approaching, like he didn't want to be seen ... and I'm trying to figure out what's going on. You know - what's this guy up to? I was getting a little leery, from the training, of my past experience of arrests, involving gun arrests."37 It is hard to imagine that Diallo's race did not contribute to the officers' unwarranted suspicions.
The same assumptions that lead police to engage in disproportionate stops of minority drivers leads them to engage in disproportionate stops of minority pedestrians. For Amadou Diallo and others like him, these assumptions produced tragic results. The Diallo case made headlines throughout the country, but countless incidents that do not result in death occur every day and escape public notice. These incidents contribute to a well-grounded fear among minorities that the police will assume the worst about them, and on a dark street corner that assumption can be fatal.38
3. Customs Service Profiling
Racial profiling at U.S. ports of entry has long been commonplace. Drug courier profiles used by the Customs Service have regularly included race as a factor in guiding law enforcement discretion. Anecdotal and, later, statistical evidence revealed that the Customs Service was disproportionately targeting Black women as part of its drug interdiction efforts, based on the assumption that Black women were likely to act as couriers of drugs into the United States.
The experience of Yvette Bradley is illustrative. On April 5, 1999, Ms. Bradley, an advertising executive, returned to the United States from a vacation to Jamaica with her sister. While going through customs at Newark International Airport, Ms. Bradley and her sister were both drawn aside for searches of their luggage - searches which, they noticed, were being carried out on large numbers of Black female passengers, but few White females. After her luggage had been searched, Ms. Bradley was directed to a room off to the side of the customs clearance area. In that room, Ms. Bradley was subjected to a humiliating body search, which included a (female) Customs agent touching her breasts and genital area and actually penetrating her. The search turned up nothing.39
A 2000 General Accounting Office Report on U.S. Customs Service practices confirmed Ms. Bradley's perception that Black females were being targeted for searches by Customs officials. Data from 102,000 personal searches conducted by the Customs Service in 1997-1998 revealed that in Fiscal Year 1998, Black female U.S. citizens were nine times more likely, and Hispanic female U.S. citizens four times more likely, than White female U.S. citizens to be x-rayed on suspicion of drug smuggling.40 Black women were also more likely than any other groups to be strip-searched. Black and Hispanic men and women were more likely overall to be x-rayed after being patted down or frisked than White men and women.41
4. Profiling in the Immigration Context
The United States is a nation of immigrants. Nevertheless, immigration enforcement policies have often targeted specific groups of immigrants for disproportionate and improper attention. As discussed in Chapter III, since September 11, Arabs and Muslims have been the focus of selective and unfair immigration enforcement. And America's immigration policies have long been premised on the view that Hispanics make up the majority of undocumented persons in the United States and that, therefore, any given Hispanic in the United States may well be here illegally. These presumptions were given legal foundation by the United States Supreme Court, which in 1975, relying on statistical data that Mexicans were 85 percent of the undocumented persons in the United States, held that a police officer may rely on an individual's perceived Mexican appearance in determining whether to make a stop.42
The immigration context has been fertile ground for profiling against Hispanics. A 1999 study by the National Council of La Raza identified a pattern of selective enforcement of U.S. immigration laws by the Immigration and Naturalization Service and local officials. Individuals who appear to be of Hispanic origin - even if they are U.S. citizens, legal permanent residents or otherwise lawfully in the United States - have been targeted by authorities and subjected to interrogation and detention for suspected violations of immigration or criminal laws.43
An example of such targeting was "Operation Restoration" in Chandler, Arizona, a 1997 joint endeavor between the Chandler Police Department and the U.S. Border Patrol. According to a study by the Arizona Attorney General, local police and Border Patrol officers implementing Operation Restoration "without a doubt . . . stopped, detained, and interrogated [Chandler residents] . . . purely because of the color of their skin."44 Recent evidence further supports the conclusion that immigration enforcement efforts rely on profiling. A 2001 New York Times report revealed that INS agents in New York City often relied in whole or in part on race, Spanish accent, and other racial or ethnic characteristics in determining whether to undertake investigations.45
Immigration-related profiling of Hispanics does not just occur at the border, but also in the interior of the country. For example, litigation in Ohio revealed that the State Highway Patrol, an agency with no official role whatsoever in immigration enforcement, engaged in the practice of stopping Hispanics and seizing without cause their green cards in an effort to determine if they were violating immigration laws.46
The statistics cited by the U.S. Supreme Court over a quarter-century ago in Brignoni-Ponce are obsolete: Hispanics now constitute a much larger percentage of the legal U.S. population than they did in 1975 and a smaller percentage of the population of undocumented persons in the United States than at that time. In the 1990's alone, the Hispanic population of the United States grew by 38 percent.47 The majority of Hispanics in the United States are citizens.48 Nevertheless, the statistics demonstrate that INS has continued to focus disproportionate enforcement energy on Hispanics, especially those of Mexican ancestry. While Mexicans constituted less than half of the total number of undocumented persons in the United States in 1996, they were nearly three-quarters (73.5%) of those deported in that year. While Hispanics in 1996 constituted about 60 percent of all undocumented persons in the United States, they were over 90 percent of those subjected to INS enforcement actions.49
In his book Profiles in Injustice, Professor David Harris, an expert on racial profiling, recounts the story of U.S. District Judge Filemon Vela and his encounters with Border Patrol agents. On several occasions, agents stopped cars Judge Vela was driving or riding in and, without any basis for believing he was in the United States illegally, questioned him and others in the car (including members of his staff and an Assistant U.S. Attorney) about their immigration status.50 Judge Vela realized that if the Border Patrol could stop and question without legal basis a federal judge and prosecutor, they could do it to anyone and that this development would be disastrous for our constitutional system.51 Experience has proven Judge Vela right on both counts.
B. The Myths Behind Traditional Racial Profiling
Those who continue to defend "traditional" racial profiling argue that profiling is a rational response to patterns of criminal conduct. These arguments rest implicitly or explicitly on two assumptions, each of which is not only flawed, but also pernicious and divisive.
The first assumption is that minorities commit the majority of crimes and that it is therefore a sensible use of police resources to focus on the behavior of those individuals. Carl Williams, Superintendent of the New Jersey State Police until his dismissal in March 1999, who stated in defense of racial profiling that "mostly minorities" traffic in marijuana and cocaine, epitomized this attitude.52 The assumption, shared by many, that minorities commit most crimes is flatly incorrect with respect to those crimes most commonly associated with racial profiling - drug crimes. Blacks and Hispanics commit drug offenses at a rate generally proportional to their percentage of the United States population: African Americans represent approximately 12 to13 percent of the U.S. population and, in 2000, 11 percent of all illicit drug users.53 Similarly, while Hispanics constitute about 13 percent of the United States population,54 they were, in 2000, 10 percent of illicit drug users.55 While involvement in drug trafficking is harder to measure, a National Institute of Justice report indicates that drug users tend to purchase from members of their own racial or ethnic group, which suggests that use rates and trafficking rates are likely to be similar.56 And for the past two decades, drug use among Black youths has been consistently lower per capita than among White youths.57
These conclusions are borne out by data on traffic stops and other forms of racial profiling, which almost uniformly reveal that "hit rates" (i.e., discovery of contraband or evidence of other illegal conduct) among minorities stopped and searched by the police are lower than or the same as hit rates for Whites who are stopped and searched. For example:
- to a Department of Justice survey of 1999 traffic stops, officers found contraband more often when they searched Whites than when they searched African Americans (17 percent versus eight percent).58
- In 2000, New Jersey State troopers found contraband during stops of White-driven vehicles 25 percent of the time, while they found contraband during stops of Black-driven vehicles 13 percent of the time and Latino-driven vehicles only 5 percent of the time.59
- According to the GAO report on U.S. Customs Service practices, while Black female U.S. citizens were nine times as likely to be x-rayed following a frisk or pat-down as White female U.S. citizens, they were less than half as likely to be found to be carrying contraband after these x-rays.60 According to the New York Attorney General's Report on NYPD "stop and frisk" practices, stops of minorities were less likely to yield arrests than stops of Whites. The NYPD arrested one White New Yorker for every eight stops, one Hispanic New Yorker for every nine stops, and one Black New Yorker for every 9.5 stops. The statistics for stops engaged in by the NYPD's plain clothes Street Crimes Unit were even starker - this unit stopped 16.3 Blacks per arrest, 14.5 Hispanics per arrest, but only 9.7 Whites per arrest.61
- Recent data from the LAPD indicates that while White pedestrians were stopped and searched by LAPD less per capita than Black or Hispanic pedestrians, the hit rates for all three populations were about the same: 21 percent of White pedestrians who were searched by LAPD were found in possession of evidence of a crime, as compared to 22 percent of Blacks and 20 percent of Hispanics.62
- Traffic stop data from Massachusetts from April 2001-November 2002 reveals that 16 percent of Whites searched were charged with a drug offense, as compared to 12 percent of Blacks and 10 percent of Hispanics, despite the fact that both Blacks and Hispanics were stopped and searched more than Whites.63
These "hit rate" statistics render implausible any defense of racial profiling on the ground that minorities commit more drug crimes than White Americans.
The argument, made by some defenders of profiling, that minorities commit more violent crimes than Whites ignores the nature of racial profiling, which has nothing to do with violent crime.64 In the violent crime context, profiling is rare because it is unnecessary - such crimes typically feature a complaining victim who provides police with a specific suspect description. Profiling is used to address crimes without complaining witnesses, in particular drug possession and trafficking offenses.65 And while there is clearly a connection between certain acts of criminal violence and the drug trade, the incidence of violent crime is less a function of who uses or sells drugs than of who lives in poor and dangerous neighborhoods.66 The data is unassailable: stopping and searching Blacks or Hispanics at a disproportionately high rate will not yield more drug arrests. In fact, the opposite is often true.
The baseless assumption that most criminals are minorities is accompanied by the second, equally flawed assumption that many, or most, minorities are criminals. The premise of racial profiling is that random checks of Blacks or Hispanics are likely to yield evidence of a crime. But there is no basis for that assumption. Even after being disproportionately targeted for stops and searches, most Blacks are not arrested because the vast majority of those stopped are innocent of the suspected criminal conduct. Less than 10 percent of all Blacks are even arrested in a single year.67 The overwhelming majority of minorities in the United States - like the vast majority of Whites - are law-abiding citizens. The hit rate data discussed above amply demonstrates this point.
A third assumption sometimes relied on by proponents of the particular practice of pretextual traffic stops is that minority motorists are more likely to speed than White motorists and that police are therefore justified in pulling over minorities at a disproportionate rate.68 Even if this were true (and studies such as Professor John Lamberth's in Maryland and New Jersey prove otherwise), differences in driving between minorities and Whites cannot explain away the practice of racial profiling, for several reasons.
First, data on speeding does not take into account the fact that motorists are pulled over for any number of traffic violations that do not involve speeding. Many minority motorists, including several identified in this Report, have been pulled over for pretextual traffic offenses other than speeding. As Professor Harris has noted, the traffic code is a law enforcement agent's best friend because virtually anyone can be found to have violated it in some way at almost any time.69
Second, data on speeding cannot explain why Black and Hispanic motorists, once stopped by the police, are searched at a disproportionately higher rate than Whites. A traffic offense alone does not give a police officer the right to search a car. To have the right to search, the officer must observe something that gives him or her probable cause to believe a crime is afoot or must ask the driver for permission to search. Racial disparities in the incidence of consensual searches, as demonstrated above, cannot be explained by differences in driving patterns and furnishes the best evidence of profiling.
Finally, explaining disparities in traffic stops with speeding data is naïve. Police use traffic stops as a pretext to investigate other types of criminal activity. Their decisions about who to stop - like their decisions about who to search - are premised less on who violates the traffic laws than on whom they baselessly assume is engaged in more serious criminal activity.
C. The Consequences of Racial Profiling
The assumptions that most criminals are minorities and that most minorities are criminals, and the racial profiling that flows from these assumptions, have extreme negative consequences.
1. The Innocent
By "racializing" crime and "criminalizing" race, law enforcement officials place the burden of law enforcement on minorities who are investigated but found entirely innocent of any wrongdoing. For every person in possession of drugs who is apprehended through profiling, many more law-abiding minorities are treated as if they were criminals. The humiliation experienced by a person who has been unfairly profiled cannot be overstated.
In June 1993, Larry Sykes, a Black vice president of a Toledo, Ohio bank, was driving home from an economic development conference in Cleveland when he was pulled over because his car had no front license plate. Mr. Sykes' paperwork was in order, but the officer, instead of simply issuing a ticket or warning, started frisking him and asked if he was carrying any drugs or weapons. After Mr. Sykes questioned the basis for these inquiries, the officer ordered him to stand next to the car with his legs spread and his hands on top of the car. As Mr. Sykes took this position, a bus full of his fellow Cleveland conference delegates drove by and witnessed him being treated as a common criminal. Sykes was released without a ticket, citation, warning or apology, and said later: "I never felt so degraded, humiliated and belittled in all my life."70 Mr. Sykes' feelings are not unique. Texas State Judge Gilberto Hinojosa, 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."71 Such alienation is a common consequence of being profiled.
Exposure to profiling has behavioral as well as emotional consequences. Many African Americans and other minorities choose to drive in certain cars and on certain routes, and to dress in certain clothes, in order to avoid drawing the attention of police.72 Or they choose to live in areas where they will not stand out as much, thereby reinforcing patterns of residential segregation.73 A 1999 Gallup Poll revealed that 42 percent of African Americans, and 72 percent of African American males between the ages of 18 and 34, believe they have been stopped by police because of their race.74 For African Americans, Hispanics, and other minorities, this is a way of life.75
2. The Guilty
Defenders of profiling who claim that minorities commit more crimes and therefore deserve special attention from the authorities point to statistics showing that America's prison population is predominantly composed of minorities. What they fail to acknowledge, however, is that racial profiling itself contributes to the disparity in arrest and crime rates that, in turn, leads to the minority-majority prison population. Racial profiling becomes a self-fulfilling prophecy. As Professor David Harris has written:
Because police will look for drug crime among Black drivers, they will find it disproportionately among Black drivers. More Blacks will be arrested, prosecuted, convicted, and jailed, thereby reinforcing the idea that Blacks constitute the majority of drug offenders. This will provide a continuing motive and justification for stopping more Black drivers as a rational way of using resources to catch the most criminals.76
And, indeed, this prophecy has come to pass. As noted earlier, while Blacks are just 12 percent of the U.S. population and 11 percent of drug users, and despite the fact that racial profiling yields no more (and often fewer) arrests of minorities than of Whites for drug crimes, Blacks are 38 percent of those arrested for drug offenses and 59 percent of those convicted for drug offenses.77 Similarly, while Hispanics make up about 13 percent of the population and 10 percent of illicit drug users, they are 37 percent of the overall prison population.78 Moreover, more frequent stops and then arrests of minorities also result in longer sentences for minorities because disproportionate arrest rates generate more extensive criminal histories for minorities, which in turn influence sentencing outcomes.79
The end result is a lost generation of African American, Hispanic, and other minority males. Almost one in three Black males aged 20-29 is on any given day under some form of criminal supervision - either in prison or in jail, or on probation or parole.80 As of 1995, one in 14 adult Black males was in prison or jail on any given day.81 And a Black male born in 1991 has a 33 percent chance of spending part of his life in prison. A Hispanic male born in 1991 has a one in six chance of spending time in prison.82
There are also collateral consequences to the burgeoning minority prison population. In 46 states and the District of Columbia, convicted adults in prison cannot vote. Thirty-two states also disenfranchise felons on parole, while 29 states disenfranchise felons on probation. Because of the disproportionately large percentage of convicted Black criminals, a circumstance to which profiling contributes, 1.4 million Black men - 13 percent of all adult Black males - are denied the right to vote. In two states, 31 percent of all adult Black males are permanently disenfranchised.83 Thus, profiling rolls back one of the hardest-fought gains of the civil rights movement - the right to vote.
Finally, the massive incarceration of minority males has an extreme destabilizing effect on minority communities. It skews the male-female ratio in those communities, increases the likelihood that children will not be raised by both parents, and contributes to the fragmentation of inner city neighborhoods that renders the crime-race linkage a self-fulfilling prophecy.84