Racial Profiling and the State
Racial Profiling Is Not Needed to Catch Real Criminals
JUNE 01, 2001 by SHELDON RICHMAN
Virtually everyone wants to be on record opposing racial profiling in law enforcement, the use of race or ethnicity to help determine whom the police should suspect of criminal activity. Nothing is easier than opposing it.
That is understandable. There is something unseemly about targeting someone for a criminal investigation simply because of his skin color or ethnic membership. Those things do not constitute probable cause, and the police shouldn’t act like they do.
But beware hypocrisy. One mark of a hypocrisy in politics is the failure to oppose that which necessitates something else one opposes because opposing it would conflict with one’s agenda.
For example, few people who decry the role of money in politics go on to oppose what beckons that money: the life-and-death tax and regulatory powers held by government. If you oppose the former, you logically must oppose the latter, which is genesis of the alleged problem. If the government had nothing to sell, no one would be trying to buy. But few are guided by logic on the issue.
Similarly, most people who oppose racial profiling fail to oppose what necessitates it. On the contrary, they enthusiastically support precisely what gives rise to it. Thus protestations against racial profiling are empty posturing designed only to appeal to a set of voters.
Racial profiling is used most often to catch drug sellers and buyers and possessors of guns—in other words, to enforce laws against victimless crimes. It’s not needed to catch real criminals—people who have violated the rights of others by killing, beating, raping, or robbing them. Victims often can describe their assailants to the police. Where no description is available, the police use fingerprinting, DNA, and other evidence-gathering measures. Racial profiling is superfluous.
Take the tragic incident in New York in 1999 when Amadou Diallo, an innocent and unarmed black man, was gunned down by four policemen. Whatever may be said about that tragedy, or its exploitation by Al Sharpton, it was not a case of racial profiling.* The police were looking for a man who had raped several black women in Diallo’s neighborhood. They had a description of the perpetrator furnished by the victims. Diallo didn’t fit a racial profile. He fit the description. Thus the policemen’s decision to approach him could hardly have been a case of racial profiling, much less racism. Should they have questioned white males for the sake of fairness?
Racial profiling, on the other hand, is indispensable for catching perpetrators of victimless crimes, such as drug dealing and possession. Why? Because there are no complaining witnesses. The parties to a drug transaction consent and therefore have no reason to describe each other to the police. The authorities would have no way of knowing a drug crime had taken place, much less who committed it. This makes victimless crimes fundamentally different from real crimes. It also makes law enforcement different.
If all parties to a certain kind of criminal activity do not wish it to come to the attention of the police, the police have a problem. They must find other ways to ferret out evidence of the crime. They will have to rely on wiretaps, searches of residences, street stops of people on the basis of low-level suspicion, and sting operations, such as the one that led to the death of Patrick Dorismond, another innocent man in New York. The police have no other way of catching violators.
But whom shall they target? Obviously, the police will not want to waste time and money with truly random searches and sting operations. Rather, they will focus their efforts for the maximum return. If experience indicates that drug activity is concentrated in particular parts of town and that minority groups are overrepresented among people caught with drugs, the police will focus on those groups and parts of town. That may look like racism, but that’s an unlikely explanation. Police win glory by making busts. They have nothing to gain by targeting members of a certain racial group, no matter how much they may dislike that group, if its members rarely engage in the illegal activity. The targeting of groups will tend to have some basis in reality.
Racial profiling is wrong in part because the war on drugs and other victimless activities is wrong. No violation of rights is intrinsic in the buying, selling, or using of drugs. In a free society, consensual activity between adults should not be a crime. If someone violates another’s rights while using drugs, the criminal should be punished for the actual crime. Drugs, like alcohol, are no excuse.
We can go further and condemn racial profiling for contravening Western principles of jurisprudence. The Fourth Amendment to the U.S. Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Assume a burglary has occurred in a particular part of town and there is no description of the criminal. However, crime statistics show that young black men are disproportionately represented among convicted burglars. It may indeed be reasonable to guess that the perpetrator is a young black man. But do those facts make the detention and search of all young black men reasonable? Does being young, male, and black in these circumstances constitute probable cause? I don’t see how those questions can be answered in the affirmative. And if they are answered affirmatively, what case is there against the state’s preventing certain people from committing crimes in the first place?
We have been considering what government may properly do before or after a crime is committed. Government, as an apparatus of legalized force, is a special case. Private individuals, on the other hand, should be free to act on racial profiles if they wish; specifically, they should be free to avoid certain people and parts of town. Thus taxi and pizza-delivery drivers should not be legally prohibited from exercising their discretion. If these profit maximizers pass up fares and sales to avoid certain areas and customers, they probably have a good reason that has nothing to do with racism.
* For a valuable analysis of the tragedy, see Timothy Lynch, “‘We Own the Night’: Amadou Diallo’s Deadly Encounter with New York City’s Street Crimes Unit,” Cato Institute Briefing Papers, No. 56, March 31, 2000, at www.cato.org//pubs/briefs/bp-056es.html.