Racial Profiling: Research, Racism, and Resistance, Research Paper Example

Abstract

Racial profiling has been subject to debate in the past few decades. Even though some authors deny its existence in the law enforcement and criminal justice system, the fact that it is analyzed and debated indicates that it is a discriminative issue that needs to be examined. The below article will analyze the question from different perspectives: law enforcement, legislation, ethical and criminology. Questions will be asked with regards to the constitutional, legal and ethical validity of racial profiling, as well as the use of it in the criminal justice system. Several constitutional issues will be reviewed alongside with individual case studies in order to determine whether it is an effective method of crime prevention or a simply discriminative practice of the law enforcement workforce. Indeed, according to the Department of Justice (2003),  several presidents have initiated changes in the legal system to ban the practice. The problem is that there is little or no visible affect on law enforcement practices. Therefore, historical and current statistical data will also be examined in order to evaluate racial profiling in America.

Introduction

The below essay is developed to address the question of racial profiling from various aspects. While the main focus of the author will be the applicability, constitutionality and ethical justification of racial profiling, there are several debates related to the racist feature of profiling, discriminative working methods of the police and the legal system.

Statistical data confirms that Blacks are more likely to be stopped on the street than Whites, while they are also more likely to get arrested (Harcourt, 2009, p. 2). According to several authors, there is little or no evidence that the use of racial profiling increases the effectiveness of the legal system and law enforcement work. The authors would like to review related legislation, constitutional orders, recommendations and law enforcement, criminal justice system recommendations related to racial profiling in order to understand the significance of the problem, the possible negative or positive impact of it on providing justice and its connection with anti-discriminative orders. Is racial profiling simply a manifestation of racial prejudice, or does it have a foundation in statistical data?

According to the an analytical publication of the Department of Justice (2003), racial profiling is wrong and should not be tolerated. Statistical data, however, indicates that it is still present in the U.S. justice system. Engel, Calnon & Bernard (2006) state that it is indeed a public concern that “race-based decision making reflects racial prejudice”, therefore, racial profiling is an expression of negative stereotype-based discrimination. The authors also indicate that while racial prejudice has been decreasing within the police in the past 30 years, the indirect form of it; racial profiling is on the rise. (Engel et al., 2006, p. 252) This statement of the authors will be examined in the study. While presidents and legislators have tried to ban racial profiling, legislative actions delivered little or no results. Hence, the main thesis the authors of the current literature review would like to confirm during the research is:

The source of criminal profiling, race-based stereotyping and prejudice is based on personal experience, culture and preferences. Therefore, banning and prohibiting it would not result in a more just criminal and law enforcement system: education of law enforcement and criminal justice staff about ethical aspects of discrimination is a long-term solution that would change the face of America over time.

Key Terms and Theories – Review

Reviewing related literature and recent publications, the authors would like to first determine what is the commonly accepted definition of racial profiling. McDewitt, Farrell and Wolff (2008)  mention that racial profiling developed from “the “profile” of drug couriers developed by the DEA during the mid-1980s to interdict interstate drug trafficking”.  While initially it was not solely based on race, today many criminal profiling techniques include a strong racial and ethnic element. Profiling criminals based on behavior and background was proven to be useful, and continues to help the work of law enforcement officials. However, profiling solely on race is prejudicial and discriminative.

There are contradictory definitions, therefore, the authors would like to go with the description of Vermont Attorney General William Sorrell (2008) who states:

“Racial profiling, in the narrow sense, refers to a police practice of consciously or unconsciously identifying a particular racial or ethnic group as being more likely than others to be guilty of, or more prone to, committing criminal acts”.

The above definition of racial profiling has several strengths. First of all; it defines racial profiling as an existing practice, instead of referring to it as an ideology. It strongly argues that racial profiling is a current issue. Secondly, it states that the actions can be conscious or unconscious, which means that the Attorney General does not neglect the fact that racial profiling is based on stereotypes, which are often not known to the person who uses them. Finally, it refers to two main aspects of racial profiling: finding somebody guilty (criminal justice system) and presuming that one racial or ethnic group is more likely to commit crimes (policing and law enforcement). This brings us to the conclusion that is mentioned by Lever (2009): the existence of pre-crime and post-crime racial profiling. Both of the prejudicial activities are morally questionable, while the first one is relevant to law enforcement, and the latter relates to the criminal justice system.

McDewitt et al. (2008) call for cooperative strategies to reduce racial profiling in law enforcement. The authors state that there is a growing concern regarding the fairness and validity of racial profiling. The initial step was the creation of the brief: “Racially Biased Policing: A Principled Response” described six development areas where changes can be made to reduce racial profiling. These areas of policing are: recruitment and selection, training and education of community and police members, minority community engagement programs, accountability and supervision, collection and analysis of police stop statistics and technology use. (McDewitt et al., 2008, p. 3)

One of the latest theories about racial profiling is created by Harcourt (2009), who makes two strong statements about statistical discrimination. The first statement, which is a relatively new idea in criminology is that statistical discrimination is counter-productive in relation with policing. The second one is that it creates a “ratchet effect” on the profiled population and negatively influence their social outcomes. The author also states that the reason why racial profiling and statistical discrimination still exists is that it is backed up by the stereotypes and generalizations of the public. This idea, indeed, is innovative, however, it clearly provides us with a direction where to make changes. Changes about viewing race in the society can impact the rate of discriminative actions within law enforcement and the criminal justice system.

Research and Statistical Data

Engel et al. (2002) compared thirteen different research studied related to racial profiling. The findings of the study conclude that all of the studies examined found at least minor racial disparities related to stops and arrests made by the police. Quoting one particular study (National Crime Victimization survey, quoted in: Engel et al. 2002, p. 259), “black drivers were more likely to be stopped” during the year of 1999. However, the authors note that the number of stops were not compared with the number of actual traffic violations committed by black and white drivers, the study does not provide evidence for racial profiling. Therefore, the authors recommend the use of criminal justice theory and its implementation into research in order to create a framework that correctly addresses different variables and measures correlations. Te behavior or individual police officers, for example, can influence statistical results. This theory suggests that racial profiling is not a problem that exists on an organizational level within police and criminal justice, but most importantly on the individual level; which, in fact, confirms the initial thesis of the current study.

Harcourt (2009) found that there were visible disparities between ethnic groups not only in the number of stops and searches, but also the outcome of the stop and search. (p. 3)  An interesting finding, however, showed that “the disparities found decreased when the officer was of the same race as the person who was stopped” (p. 3). This finding certainly indicates that racial bias, prejudice and discrimination are influenced by the individual police officer’s views on the race and bias related to the ethnic group. Further, the author, reviewing research data and statistics, found that there is no foundation for stopping people who belong to an ethnic minority group. He states that “while minorities were about 2.5 times more likely to be searched than Whites, they were less likely to be found with contraband.”. This also implies that racial profiling is not only a stereotype-based police practice, but is something that is not supported by facts; indeed it does not increase the effectiveness of policing.

Relevance of Racial Profiling to Criminal Justice

While most authors mention police in connection with racial profiling, related to the number of searches, stops, arrests, the question of its existence in the juridical system is not fully understood. Lever (2008) states that a “background injustice” exists in courts, as well as law enforcement. The author (Lever, 2008, p. 24)  states that in the jury system, indirect form of racial profiling is extremely common when prosecutors and attorneys select jurors based on their race trying to predict how they would decide on the case.

In order to understand the full context of racial profiling and the criminal justice system, it is crucial that the related legislation are reviewed. Further, the authors will ask the question: how should the criminal justice system deal with the arrests made based on bias or racial profiling? Should claims be rejected? Indeed, there is a need for communication and harmonization of the systems, and the below literature review will provide adequate information to develop a statement and guideline.

Welch (2007) examines the prevalence of criminal stereotypes in relation with racial profiling. The author states that the prejudice and stereotype-based judgment is not solely present in the criminal justice system and law enforcement, but the society itself, too. He states that “in American society, a prevalent representation of crime is that it is overwhelmingly committed by young Black men” (Welch, 2007, p. 276), which confirms the initial thesis statement of the current study. Indeed, it is possible that the racial profiling of the police and legal system is based on “common knowledge”,  instead of statistical data or confirmed connection between race and crime. He describes criminal profiling within law enforcement as a practice “in which officials target racial minorities in criminal investigations in an attempt to increase the likelihood of uncovering illegal activity” (Welch, 2007, p. 277), therefore, the system makes assumptions based on stereotypes to make law enforcement more effective. The question is whether there is a place for these stereotype-based assumptions in a modern society? Do they help prevent more crimes and catch more criminals? The answer is yes and no, according to Welch (2007). He confirms that crime statistics show a proportional higher involvement of young Black males in crimes than whites, however, the original purpose of racial profiling is not fulfilled by the system. The War on Drugs motion that created the spread of racial profiling in law enforcement did not succeed because it used the technique. Indeed, the author states that drug consumption rates are equally distributed among ethnic groups. (Welch, 2007, p. 279) Again, he does not blame criminologists or policemen for the phenomenon: he notes the impact of media portrayals of Blacks in relation with crime and its impact on the society’s stereotypes. He states that media “have the power to help construct the meaning of race in our society” (Welch, 2007, p. 283), it affects not only the criminal justice system but all citizens of the U.S. Therefore, it would be wrong to blame policemen and prosecutors for judging based on race, if the rest of the society engages in the same activity on a daily basis. He also mentions a phenomenon he calls “racial hoax”, which is the manifestation of Black typification, exploiting on preexisting ideas of people about a race. While Welch (2007) examines Black people’s racial profiling, the same theories can be applied to Hispanic and Asian minority groups as well.

Harcourt (2009) examines whether there is a justification for racial profiling that can be found in statistical data. The author examined the crime area where racial profiling is most prevalent: drug crime and involvement. He questions the common stereotype that Blacks and Hispanics are more likely to get involved in drug use.

Dewitt et al. (2008) provides a complete framework for implementing change to reduce racial profiling within law enforcement. The cooperative strategies outlined in the evaluation brief recommend training, the implementation of inclusion and cultural diversity in the culture of the police.

An interesting Canadian case study reveals general problems within the jury system related to discrimination and racial profiling. Hamalengwa (2003) refers to jury and prosecutor bias in Canadian courts, however, it is likely that the same approaches are valid for U.S. courts. He states that “prosecutors were more likely to proceed by indictment when they tried a black defendant than when they tried a white defendant” (p. 5). He also states that indeed, it would be ineffective to search for the source of discriminative approaches in the system. Indeed, the “obstacles are both individual and systematic” (p. 7)

The legal and constitutional issues related to racial profiling are outlined by Feder (2012), who finds that there are several related passages of the constitution that indicate that the practice is not only prejudicial but illegal as well. Quoting the Fourth Amendment, related to unreasonable search and seizure, the real question is: does one’s racial profile constitute as a reason to be stopped and searched? The answer the author finds in the Constitution is based on a Supreme Court case (Terry v. Ohio), stating that “suspicion must not be based on the officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but on the specific reasonable inferences which he is entitled to draw from the facts in light of his experience” (Feder, 2012, p. 2.) The Fourteenth Amendment (related to equal protection) protects the rights of individuals to be treated equally, therefore, in court, the defendant can argue that the stop or arrest was a result of a racially motivated “selective enforcement”. This practice can be successfully argued in court, damage the reputation of not only the legal system but also the effectiveness of criminal justice. Quoting a case (Marshall v. Columbia Lea Regional Hospital), showed that the officer continuously carried out racially selective stops.

The author also brings into context the equitable standing doctrine, which is applied in U.S. courts. This doctrine led to the Lyons principle based on the decision made in the case City of Los Angeles v. Lyons (Quoted in: Feder, 2012, p. 9). The principle denies standing for plaintiffs and prevents damages claims based on future injuries.

Further, another criminal justice implication of racial profiling is noted by Feder (2012, p.  10): the Violent Crime Control and Law Enforcement Act of 1994 42 U.S.C. Section 14141, stating that the Department of Justice can initiate civil actions against agencies that engage in unconstitutional “patterns or practices”, including discriminatory law enforcement patterns.

Significance

The significance of the findings reviewed above within the criminal justice system is that criminologists should no longer review individual cases, departments, jurors or police officers in order to determine the presence of racial profiling. It is present in the society, and as Harcourt (2009) confirms, the theory of race, socialization and discrimination should be applied to understand the bias that exist in criminology. Prejudice is formed by socialization patterns, beliefs and – according to several authors reviewed within the current study – (Welch, 2007, Harcourt, 2009) by media as well. However, the application of the theory does not bring the criminal justice system closer to the solution of reducing the presence and impact of statistical racial profiling. Action needs to be taken to promote an inclusive society, and within that society, a legal system that enforces related constitutional rights of all citizens; irrelevant to their race, gender and social status. The research of statistical data has revealed that ethnic minorities are more likely to be stopped by police officers, searched, arrested, kept in custody and convicted. Higher conviction rates of Blacks have also been reported by Ogletree (2002). This indicates that the presence of prejudice and discrimination on the personal level of law enforcement and prosecution personnel creates an extremely biased criminal justice system. It has been also reviewed that the constitution provides guidelines for law enforcement personnel for avoiding bias, and several police reports have been created in the past, including case studies and recommendations (McDewitt et al., 2008) to provide a framework for staff. The communication of the strategies and guidelines, however, are the responsibility of the leadership of the given agency; creating an inclusive culture and communicating visions is the key to success.

Implications

Harcourt (2009, p. 2) states that “today, with the exception of racial profiling, the general public and most academics are entirely comfortable using the kind of generalizations, stereotypes, and profiles based on group traits that underlie racial profiling”, which means that the initial thesis statement is supported by his views. Indeed, while police staff might act based on statistical data, their personal beliefs about the given ethnic group will certainly impact their decisions whether or not to stop, search, arrest or prosecute the given person. It is, therefore, time to think differently about racial profiling: it is no longer only a practice that is created by law enforcement; its roots lie in the stereotypes that have been existing within the society for decades.

Further, as it has been found that there is no evidence that racial profiling makes law enforcement more effective, indeed, it is indicated by Harcourt (2009) that it makes police work counter-productive, it would be beneficial to review individual policing agencies’ practices and compare them with statistical evidence. Rice, Reitzel, and Piquero states that in order to deal with race-based discriminative practices, departments need to “strive toward a deeper and richer understanding of race and ethnicity” (Rice et al., 2005, p. 65)

Application of Theories in Real World Context

Harcourt (2009, p. 38) recommends providing chance for all ethnic groups instead of statistical discrimination. He sees the solution in randomizing policing and introducing neutral, random sampling, instead of making assumptions.

Farrell,  Rumminger & McDevitt (2003) calls for community partnership programs within the police, because – according to the authors, “racially biased policing is a breakdown in those police-community relations” (Farrell et al. 2003, p. 10), therefore, there is a need to re-create community links in order to rebuild trust and create shared accountability.

The Vermont Advisory Committee (2008) makes some recommendations for reducing bias and racially selective police work. Reviewing several directives and briefs from the U.S., including the Burlington Police Department Directive, the New Jersey directive to prohibit “racially-influenced” policing, the South Burlington Bias Free Policing Policy, the main recommendations of the report are:

• collection of police stop data to monitor activity
• development of a bias-free policing policy
• comprehensive training for staff made compulsory on anti-bias policing
• developing police-community relationships and promote inclusion
• prohibiting motorist profiling.

Conclusion

The above research of theories on race, prejudice and criminal justice practices, as well as the bias, racially motivated decisions within police have provided the authors with a clear direction regarding policies, implementation frameworks and recommendations related to reducing racial profiling. In order to maintain the integrity of criminal justice system and provide equal protection, in line with the Constitution, legal, social and organizational considerations need to be reviewed. The authors would like to also conclude that while prejudices and bias exist on organizational level; in courts and within police departments, they are the result of individual bias, view and socialization patterns, beliefs. Banning race-based profiling, therefore, would not deliver the anticipated results. In order to develop a system that is based on equal protection, the culture of policing and prosecution needs to be changed, through training, education, ethical principles. Further, the comparison of statistical data with race-based profiles would prove to individual police officers and prosecutors that the bias, beliefs they hold about a certain ethnic group are not founded. Further, the introduction of a training and development program in law enforcement agencies would create increased community support and trust in the legal system.

References

Department of Justice (2003) Fact sheet: Racial profiling. Retrieved from: www.usdoj.gov

Engel, R., Calnon, J. & Bernard, T. (2006) Theory and racial profiling: Shortcomings and future directions in research. Justice Quarterly, 19:2, 249-273

Farrell, A., Rumminger, J. & McDevitt, J. (2003) New challenges in confronting racial profiling in the 21st century: learning from research & practice. Northeastern University.

Feder, J. (2012) Racial profiling: legal and constitutional issues. CRS Report. Congressional Research Service 7-5700

Hamalengwa, M. (2003) The role of the judiciary in racial profiling: a case study of Canada. Convergence of Criminal Justice Systems: Building Bridges – Bridging the Gaps 24th – 28th of August, 2003, The Hague, The Netherlands.

Harcourt, B. (2009)  Racial profiling: what’s the problem? Paper Presented at the Malcolm Wiener Inequality & Social Policy Seminar Harvard University Monday, September 14. 2009

Lever, A. (2008) Racial profiling and jury trials. The Jury Expert. American Society of Jury Consultants.

McDewitt, J., Farrell, A., Wolff, R. (2008) Promoting Cooperative Strategies to Reduce Racial Profiling. Institute on Race and Justice, Northeastern University. COPS Evaluation Brief No. 1. Washington, D.C.: Office of Community Oriented Policing Services, U.S. Department of Justice

Ogletree, C. (2002) Black man’s burden: race and the death penalty in America. Oregon Law Review, Vol. 81. 15-38

Rice, S.,  Reitzel, J.  & Piquero,  A. (2005) Shades of brown: perceptions of racial profiling and the intra-ethnic differential. Journal of Ethnicity in Criminal Justice, Vol. 3(1/2) 2005

Vermont Advisory Committee (2008) Racial profiling in Vermont. Briefing Report.

Welch, K. (2007) Black Criminal Stereotypes and Racial Profiling. Journal of Contemporary Criminal Justice 2007; 23; 276