What's wrong with racial profiling? Another look at the problem

Abstract

According to Mathias Risse and Richard Zeckhauser, racial profiling can be justified in society, such as the contemporary United States, where the legacy of slavery and segregation found in lesser but, nonetheless, troubling forms of racial (1) Racial profiling, Risse and Zeckhauser recognize, often marked by police abuse and the harassment of racial minorities and by the disproportionate use of race in profiling. These, on their view, are unjustified. But, they contend, this does not mean that all forms of racial profiling are unjustified; nor, they claim, need one be indifferent to the harms of racism in order to justify racial profiling. In fact, one of the aims of their paper to show that racial profiling, suitably understood, is consistent with support for far-reaching measures to decrease racial inequities and inequality. (2) Hence, one of their most striking claims, in an original and provocative paper, that one can endorse racial profiling without being in way indifferent to the disadvantaged status of racial minorities. In an initial response to these claims, I argued that Risse and Zeckhauser tend to underestimate the harms of racial profiling. (3) I suggested two main reasons why they did so. The first that they tend to identify the more serious harms associated with profiling with background racism, and therefore to believe that these are not properly attributable to profiling itself. The second reason that they ignore the ways in which background racism makes even relatively minor harms harder to bear and to justify than would otherwise be the case. Hence, I concluded, racial profiling cannot be normal part of police practice in society still struggling with racism, although under very special conditions and with special regulation and compensation in place, it might be justified as an extraordinary police measure. I want to stand by those claims. However, Risse's response to my arguments persuades me that I misinterpreted his earlier position in one significant respect.4 So I will start by explaining what interpretive mistake I believe that I made. I will then argue that despite Risse's patient and careful response to my arguments, my initial concerns with his justification of profiling remain valid. Some Terminology Before getting under way, however, it might be helpful to recapitulate some terminology. The first about racial profiling. I am happy to accept Risse and Zeckhauser's definition of it as any police-initiated action that relies on the race, ethnicity, or national origin and not merely on the behavior of an individual. (5) As they say, there are several different forms of profiling, so described. The two main ones are what I will call post-crime profiling and prospective or preventive profiling. It the latter that the most controversial, and that the focus of both our papers. Whereas post-crime profiling departs from witness's description, however vague, of suspect who has actually committed crime, preventive profiling creates profile based on statistical evidence of who likely to commit crime, and then uses this to initiate police stops and searches. Its aims, therefore, are to prevent crime--if possible by catching criminals before they are actually able to carry out their nefarious plans. This form of profiling controversial because we generally suppose that the police are entitled to stop and search only people whose behavior supports the belief that they have committed, or are about to commit, crime. The preemptive aspects of profiling seem to threaten that principle, and thus to justify what, in American constitutional jargon, would be called a warrantless search. (6) In addition to these general worries about prospective profiling, however, there are worries specific to racial profiling. Those worries, quite simply, are that profiling based on racial characteristics (as popularly understood), (7) exacerbates racism in society, and likely to lead to the abuse and harassment of racial minorities. …