»  National Review

February 19th, 2001

  The Case For Racial Profiling

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"Racial profiling" is now one of the shibboleths of our time. Anyone who wants a public career in the United States must place himself on record as being against it. Thus, ex-Senator John Ashcroft, on the eve of his confirmation hearings: "It's wrong, inappropriate, shouldn't be done." During the Vice-Presidential debate last October, Bernard Shaw invited the candidates to imagine themselves black victims of racial profiling. Both made the required ritual protestations of outrage. Lieberman: "I have a few African American friends who have gone through this horror, and you know, it makes me want to kind of hit the wall, because it is such an assault on their humanity and their citizenship." Cheney: "It's the sense of anger and frustration and rage that would go with knowing that the only reason you were stopped … was because of the color of your skin … " In the strange, rather depressing, pattern these things always follow nowadays, the American public has speedily swung into line behind the Pied Pipers: Gallup reports that 81 per cent of the public disapproves of racial profiling.

All of which represents an extraordinary level of awareness of, and hostility to, and even passion against ("hit the wall … ") a practice which, up to about five years ago, practically nobody had heard of. It is, in fact, instructive to begin by looking at the history of this shibboleth.

To people who follow politics, the term "racial profiling" probably first registered as a large issue when Al Gore debated Bill Bradley at New York's Apollo Theater last February. Here is Bradley, speaking of the 1999 shooting of African immigrant Amadou Diallo by New York City police: "I … think it reflects … racial profiling that seeps into the mind of someone so that he sees a wallet in the hand of a white man as a wallet, but a wallet in the hand of a black man as a gun. And we — we have to change that. I would issue an executive order that would eliminate racial profiling at the federal level."

Nobody was unkind enough to ask Sen. Bradley how an executive order would change what a policeman sees in a dark lobby in a dangerous neighborhood at night. Nor was anyone so tactless as to ask him about the case of LaTanya Haggerty, shot dead in June 1999 by a Chicago policewoman who mistook her cell phone for a handgun. The policewoman was, like Ms. Haggerty, black.

Al Gore, in that debate at the Apollo, did successfully, and famously, ambush Bradley by remarking that: "You know, racial profiling practically began in New Jersey, Senator Bradley." In true Clinton-Gore fashion, this is not true, but it is sort of true. "Racial profiling" the thing has been around for as long as police work, and is practiced everywhere. "Racial profiling" the term did indeed have its origins on the New Jersey Turnpike in the early 1990s. The reason for the prominence of this rather unappealing stretch of expressway in the history of the phenomenon is simple: the Turnpike is the main conduit for shipment of illegal drugs and other contraband to the great criminal marts of the Northeast. If Canada, instead of Mexico, were a major drug entrepot, we should be talking about the New York State Thruway in this context.

The career of the term "racial profiling" seems to have begun in 1994, but did not really take off until April of 1998, when two white New Jersey state troopers pulled over a van for speeding. As they approached the van from behind, it suddenly reversed towards them. The troopers fired 11 shots from their handguns, wounding 3 of the van's 4 occupants, who were all black or Hispanic. The troopers, James Kenna and John Hogan, subsequently became poster boys for the "racial profiling" lobbies, facing the same indignities, though so far with less serious consequences, as were endured by the Los Angeles policemen in the Rodney King case: endless investigations, double jeopardy and so on.

And a shibboleth was born. News-media databases list only a scattering of instances of the term "racial profiling" from 1994 to 1998. In that latter year the number hit double figures, and thereafter rose quickly into the hundreds and thousands. Now we all know about it, and we are, of course, all against it.

Well, not quite all. American courts — including (see below) the U.S. Supreme Court — are not against it. Jurisprudence on the matter is pretty clear: so long as race is only one factor in a generalized approach to questioning of suspects, it may be considered. And of course, pace candidate Cheney, it always is only one factor. I have been unable to locate any statistics on the point, but I feel sure that elderly black women are stopped by the police much less often than are young white men.

Even in the political sphere, where truth-telling and independent thinking on matters of race have long been liabilities, there are those who refuse to mouth the required pieties. Alan Keyes, when asked by Larry King if he would be angry with a police officer who pulled him over for being black, replied: "I was raised that everything I did represented my family, my race and my country. I will be angry with the people giving me a bad reputation."

Practically all law-enforcement professionals believe in the need for racial profiling. In an article on the topic for the New York Times Sunday magazine in June 1999, Jeffrey Goldberg interviewed Bernard Parks, chief of the Los Angeles Police Department. Parks, who is black, called racial profiling "playing the percentages," and added: "It's common sense." Note that date, though. It was pretty much the last point at which it was possible for a public official to speak truthfully about racial profiling. Law-enforcement professionals were learning the importance of keeping their thoughts to themselves on this issue. Four months before the Times story saw print, New Jersey State Police Superintendent Carl Williams, in an interview, said that certain crimes were associated with certain ethnic groups, and that it was naive to think that race was not an issue in policing — both statements, of course, perfectly true. Supt. Williams was fired the next day by Governor Christie Todd Whitman.

Like other race issues in the U.S., racial profiling is a "tadpole," with an enormous black head and a long but comparatively inconsequential brown, yellow and red tail. While Hispanic, "Asian American" and other lesser groups have taken up the "racial profiling" chant with gusto, the crux of the matter is the resentment that black Americans feel toward the attentions of white policemen. By far the largest number of Americans that are angry about racial profiling are law-abiding black people who feel that they are stopped and questioned because the police regard all black people with undue suspicion. They feel that they are the victims of a negative stereotype.

They are. Unfortunately, a negative stereotype can be correct, and even useful. I was surprised to find, when researching this article, that within the academic field of social psychology there is a large literature on stereotypes, and that much of it — an entire school of thought — holds that stereotypes are essential life tools, are accurate much more often than not, and that we do not use them as much as, from cold practical considerations, we should. On the scientific evidence, the primary function of stereotypes is what researchers call "the reality function." That is, stereotypes are useful tools for dealing with the world. Confronted with a snake or a faun, our immediate behavior is determined by generalized beliefs — stereotypes — about snakes and fauns. Stereotypes are, in fact, merely one aspect of the mind's ability to make generalizations, without which science and mathematics, not to mention, as the snake/faun example shows, much of everyday life, would be impossible.

At some level, everybody knows this stuff, even the guardians of the "racial profiling" flame. Jesse Jackson famously, in 1993, confessed that: "There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery, then look around and see somebody white and feel relieved." Here is Sandra Seegars of the Washington D.C. Taxicab Commission:

Late at night, if I saw young black men dressed in a slovenly way, I wouldn't pick them up … And during the day, I'd think twice about it.

Pressed to define "slovenly," Ms. Seegars elaborated thus: "A young black guy with his hat on backwards, shirttail hanging down longer than his coat, baggy pants down below his underwear and unlaced tennis shoes." Now there's a stereotype for you! Did I mention that Ms. Seegars is black?

Law enforcement officials are simply employing the same stereotypes as you, me, Jesse and Sandra, but taking the opposite course of action. What we seek to avoid, they pursue. They do this for reasons of simple efficiency. A policeman who concentrates a disproportionate amount of his limited time and resources on young black men is going to uncover far more crimes — and therefore be far more successful in his career — that one who biases his attention toward, say, middle-aged Asian men. It is, as Chief Parks said, common sense.

Similarly with the tail of the tadpole — racial profiling issues that do not involve black people. China is known to have obtained a top-secret warhead design. Among those with clearance to work on that design are people from various kinds of national and racial background. Which ones should investigators concentrate on? The Italians? The answer surely is: they should first check out anyone who has family or friends in China, who has made trips to China, or who has met with Chinese officials. This would include me, for example — my father-in-law is an official of the Chinese Communist Party. Would I then have been "racially profiled"?

It is not very surprising to learn that the main fruit of the "racial profiling" hysteria has been a decline in the efficiency of police work. In Philadelphia, a federal court order now requires police to fill out both sides of an 8½ by 11 sheet on every citizen contact. Law enforcement agencies nationwide are engaged in similar statistics-gathering exercises, under pressure from federal lawmakers like U.S. Rep. John Conyers, who has announced that he will introduce a bill to force police agencies to keep detailed information about traffic stops. ("The struggle goes on," declared Rep. Conyers. The struggle that is going on, it sometimes seems, is a struggle to prevent our police forces from accomplishing any useful work at all.)

The mountain of statistics that is being brought forth by all this panic does not, on the evidence so far, seem likely to shed much light on what is happening. The numbers have a way of leading off into infinite regresses of uncertainty. The city of San Jose, Ca., for example, discovered that, yes, the percentage of blacks being stopped was higher than their representation in the city's population. Ah, but patrol cars were computer-assigned to high-crime districts, which are mainly inhabited by minorities. So that over-representation might actually be an under-representation! But then, minorities have fewer cars …

Notwithstanding the extreme difficulty of finding out what is actually happening, we can at least seek some moral and philosophical grounds on which to take a stand either for or against racial profiling. I am going to take it as a given that most readers of this piece will be of a conservative inclination, and shall offer only those arguments likely to appeal to persons so inclined. If you seek arguments of other kinds, they are not hard to find — just pick up your broadsheet newspaper or turn on your TV.

Of arguments against racial profiling, probably the ones most persuasive to a conservative are the ones from libertarianism. Many of the stop-and-search cases that brought this matter into the headlines were part of the so-called "war on drugs." The police procedures behind them were ratified by court decisions of the 1980s, themselves mostly responding to the rising tide of illegal narcotics. In U.S. vs. Montoya De Hernandez (1985) for example, Chief Justice Rehnquist validated the detention of a suspected "balloon swallowing" drug courier until the material had passed through her system, by noting previous invasions upheld by the Court:

[F]irst class mail may be opened without a warrant on less than probable cause … Automotive travellers may be stopped … near the border without individualized suspicion even if the stop is based largely on ethnicity …

(My italics.) The Chief Justice further noted that these incursions are in response to "the veritable national crisis in law enforcement caused by smuggling of illegal narcotics."

Many on the political Right feel that the war on drugs is at best misguided, at worst a moral and constitutional disaster. I do not myself agree with this point of view, though this is not the place to argue the matter. (For the best short counter-blast against the drug legalizers, seek out Ann Coulter's spirited one-pager "The Drug Shills" in the 9/22/00 Human Events .) I do, however, think it is naive to imagine that the "racial profiling" hubbub would go away, or even much diminish, if all state and federal drug laws were repealed tomorrow. Black and Hispanic Americans would still be committing crimes at rates higher than citizens of other races. The differential criminality of various ethnic groups is not only, nor even mainly, located in drug crimes. In 1997, for example, blacks, who are 13 per cent of the U.S. population, comprised 35 per cent of those arrested for embezzlement. (It is not generally appreciated that black Americans commit higher levels not only of "street crime," but also of white-collar crime.)

Even without the drug war, diligent police officers would still, therefore, be correct to regard black and Hispanic citizens — other factors duly considered — as more likely to be breaking the law. The Chinese government would still be trying to recruit spies exclusively from among Chinese-born Americans. (The Chinese Communist Party is, in this respect, the keenest "racial profiler" of all.) The Amadou Diallo case — the police were looking for a rapist — would still have happened.

The best non-libertarian argument against racial profiling is the one from equality before the law. This has been most cogently presented by Randall Kennedy. Prof. Kennedy concedes most of the points I have made. Yes, he says:

Statistics abundantly confirm that African Americans — and 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 the media's (or the police's) racist imagination. In recent years, for example, victims of crime report blacks as the perpetrators in around 25 per cent of the violent crimes suffered, although blacks constitute only about twelve percent of the nation's population.

And yes, says Prof. Kennedy, outlawing racial profiling will reduce the efficiency of police work. None the less, for constitutional and moral reasons we should outlaw the practice. If this places extra burdens on law enforcement, well, "racial equality, like all good things in life, costs something; it does not come for free."

There are two problems with this. The first is that Prof. Kennedy has minimized the black-white difference in criminality, and therefore that "cost." I don't know where his 25 per cent comes from, or what "recent years" means, but I do know that in Department of Justice figures for 1997, victims report 60 per cent of robberies as having been committed by black persons. In that same year, a black American was eight times more likely than a non-black to commit homicide — and "non-black" here includes Hispanics, not broken out separately in these figures. A racial profiling ban, under which police officers were required to stop and question suspects in precise proportion to their demographic representation (in what? the precinct population? the state population? the national population?) would lead to massive inefficiencies in police work. Which is to say, massive declines in the apprehension of criminals.

The other problem is with the special status that Prof. Kennedy accords to race. Kennedy: "Racial distinctions are and should be different from other lines of social stratification." Thus, if it can be shown, as it surely can, that state troopers stop young people more than old people, relative to young people's numerical representation on the road being patrolled, that is of no consequence. If they stop black people more than white people, on the same criterion, that is of large consequence. This, in spite of the fact that the categories "age" and "race" are both rather fuzzy (define "young" … ) and are both useful predictors of criminality. In spite of the fact, too, that the principle of equality before the law does not, and up to now has never been thought to, guarantee equal outcomes for any law-enforcement process, only that a citizen who has come under reasonable suspicion will be treated fairly.

It is on this special status accorded to race that, I believe, we have gone most seriously astray. I am willing, in fact, to say much more than this: in the matter of race, I think the Anglo-Saxon world has taken leave of its senses. The campaign to ban racial profiling is, as I see it, a part of that large, broad-fronted assault on common sense that our over-educated, over-lawyered society has been enduring for some forty years now, and whose roots are in a fanatical egalitarianism, a grim determination not to face up to the realities of group differences, a theological attachment to the doctrine that the sole and sufficient explanation for all such differences is "racism" — which is to say, the malice and cruelty of white people — and a nursed and petted guilt towards the behavior of our ancestors.

At present Americans are drifting away from the concept of belonging to a single nation. I do not think this drift will be arrested until we can shed the idea that deference to the sensitivities of racial minorities — however over-wrought those sensitivites may be, however over-stimulated by unscrupulous mountebanks, however disconnected from reality — trumps every other consideration, including even the maintenance of social order. To shed that idea, we must confront our national hysteria about race, which causes large numbers of otherwise-sane people to believe that the hearts of their fellow-citizens are filled with malice towards them. So long as we continue to pander to that poisonous, preposterous belief we shall only wander off deeper into a wilderness of division, mistrust and institutionalized rancor — that wilderness, the most freshly-painted signpost to which bears the legend RACIAL PROFILING.