In May 1992, Robert Wilkins, a Harvard-trained African American attorney, was returning home from a family funeral in Chicago with three members of his extended family, two males and one female. While driving in a rental vehicle on the interstate highway near Cumberland, Maryland, they were pulled over for speeding by a state trooper who asked for consent to search the vehicle. Wilkins, fully aware of his constitutional rights, refused to consent to a search. The officer detained Wilkins and his family outside the car for almost an hour, in the rain, until a drug-sniffing dog was brought to search the vehicle. The search turned up nothing and the police officer simply issued a ticket. Wilkins later learned that his family had been stopped because he and his relatives fit the profile developed and used by Maryland State Police to uncover drug-running activity along the highway: they were male, Black, and driving a rental car.11
In October 1999, Alberto Lovato, a 29-year-old Latino musician, was pulled over by a Los Angeles police officer, allegedly for using the right turn lane to pass other vehicles. Police records show that the officer stopped Mr. Lovato more than 15 miles away from the site of the alleged violation. The officer did not ask for Mr. Lovato's license or registration; instead he drew his gun and told Mr. Lovato to get out of his car and lie face down on the ground. After two other officers arrived, Mr. Lovato was frisked, handcuffed so tightly that he sustained serious cuts on his wrists, and detained for more than an hour while he was questioned about gang membership, drugs and weapons. Eventually the officers took Mr. Lovato to jail where he was detained for several more hours.12
In 1993, two 15-year old Asian American girls, Minhtran Tran and Quyen Pham, were shopping in a strip mall in Garden Grove, California. Both girls were honor students and had never had any contact with law enforcement. As they were leaving the mall, the girls were confronted by Garden Grove police who accused them of making trouble and asked whether the girls belonged to gangs. The police questioned the girls, placed them against a wall and, without their consent, photographed them. Although the girls had not been charged or cited and had done nothing wrong, their photograph was posted in the Garden Grove Police Department. The police maintained that the girls had been identified as wrongdoers because they were dressed in "gang attire." In fact, the girls were dressed in form fitting shirts and baggy pants - common dress for American teenagers. What soon became evident was that the girls' race determined their treatment by the police: Orange County police had specifically identified Asian youth as being involved in gang activity.13
On September 14, 2001, an Indian American motorist and three family members were pulled over and ticketed by a Maryland state trooper because their car had broken taillights. The trooper interrogated the family, questioned them about their nationality, and asked for proof of citizenship. When the motorist said that their passports were at home, the officer allegedly stated, "You are lying. You are Arabs involved in terrorism." He ordered them out of the car, had them put their hands on the hood, and searched the car. When he discovered a knife in a toolbox, the officer handcuffed the driver and later reported that the driver "wore and carried a butcher knife, a dangerous deadly weapon, concealed upon and about his person." The driver was detained for several hours but eventually released.14
The individuals described above were all investigated by police who considered race in determining who should be suspected of criminal activity. Certain minorities, the officers assumed, are more likely than other people to engage in certain types of criminal behavior. When it came time for these police officers to exercise discretion about who to stop for conduct that thousands of Americans engage in - i.e., committing minor traffic violations or dressing a certain way -- these officials chose to stop and detain minorities. The police engaged in this activity without any actual evidence, such as a suspect description, that any of the individuals stopped had committed a crime. In all these cases, race became a proxy for specific evidence of involvement in criminal activity. This is the essence of racial profiling.
Racial profiling is any use of race, religion, ethnicity, or national origin by law enforcement agents as a means of deciding who should be investigated, except where these characteristics are part of a specific suspect description. Under this definition, racial profiling doesn't only occur when race is the sole criterion used by a law enforcement agent in determining who to investigate. Such a definition would be far too narrow. Several of the individuals described above were accused of committing traffic violations, and the Supreme Court has held that the law enforcement practice of stopping vehicles for traffic violations as a pretext for investigating more serious crimes is constitutional.15 Ms. Tran and Ms. Pham were suspected of gang activity because they were allegedly wearing "gang attire." Indeed, most law enforcement criminal profiles refer to race as one of many factors to guide law enforcement discretion.16
Today, overt racism is roundly condemned whenever it comes to light, and it is rare for individuals to be targeted by law enforcement agents solely because of their race. However, as demonstrated by the above examples and by the raft of empirical evidence developed in recent years (discussed below), race is often the decisive factor in guiding law enforcement decisions about who to stop, search, or question. Selective enforcement based in part on race is no less pernicious or offensive to the principle of equal justice than is enforcement based solely on race. Indeed, because the former form of selective enforcement is more prevalent and more subtle than explicit racism, it may be more damaging to our criminal justice system and constitutional fabric.17