Racial Profiling

The consideration of race, ethnicity, or national origin by an officer of the law in deciding when and how to intervene in an enforcement capacity.

Police officers often profile certain types of individuals who are more likely to perpetrate crimes. Many of these suspects are profiled because of activities observed by police officers. For example, if someone who is obviously poor is frequently seen in a more affluent neighborhood, such a person may be profiled as someone with possible criminal intent. Similarly, if an individual living in an obviously poor neighborhood has in his or her possession several expensive items, that person may be profiled as someone involved in crime, such as drugs or theft. Although this type of profiling is not always considered fair, law enforcement officers consider it necessary to identify possible criminal activity before it occurs and causes injury to others.

One of the most heated issues in law enforcement is the profiling of individuals based solely upon the race, ethnicity, or national origin of the individual. Statistics show that African Americans are several times more likely to be arrested and incarcerated than white Americans. As of 2000, fewer African American men were in college than were in prison. Moreover, black children were nine times as likely as white children to have at least one parent in prison.

The most common form of racial profiling occurs when police stop, question, and search African American, Hispanic American, or members of other racial minorities disproportionately based solely on the individuals' race or ethnicity. In 1996, the television network ABC aired a report entitled "Driving While Black," in which it paid three younger black men to drive around the city of New Brunswick, New Jersey, in a Mercedes-Benz. Three officers in the city pulled over the car for a minor traffic infraction and then proceeded to search the car and the young men. The show demonstrated with little doubt that the only reason the three men were pulled over was their race. Nevertheless, the officers brought a DEFAMATION suit against ABC, claiming that ABC had defamed their character and had violated New Jersey's anti-wiretapping law. In 2000, a New Jersey Superior Court judge dismissed the lawsuit.

The incident in "Driving While Black" demonstrates that racial profiling does occur, but lawmakers and courts have had some difficulty controlling its influence. Under federal CONSTITUTIONAL LAW, a police officer who stops a car for a minor traffic violation may search the car and its driver if the driver consents. Such searches sometimes result in arrests if drugs or weapons are discovered, but they have become a controversial law-enforcement technique, even when such searches do not involve incidents of racial profiling. However, the frequency with which racial profiling occurs against minorities has spurred civil liberties and CIVIL RIGHTS groups to demand stricter limitations on when officers may request a vehicle search.

New Jersey has remained in the national spotlight with respect to incidents of racial profiling. Former New Jersey Governor Christine Todd Whitman and the state attorney general admitted that New Jersey state police had engaged in racial profiling. Late in 1999, the New Jersey state police entered into a CONSENT DECREE in a federal case by which the police agreed to require reasonable suspicion of a crime before asking for consent searches during traffic stops. In a decision in 2002, the New Jersey Supreme Court made the policy a mandatory requirement under the Constitution of New Jersey for all law enforcement officers in the state.

Other states have made similar concessions. In January 2003, the Maryland State Police settled a CLASS ACTION lawsuit brought by the AMERICAN CIVIL LIBERTIES UNION (ACLU) regarding the use of racial profiling in that state. The settlement included an agreement by the Maryland police to enact sweeping changes to

prevent profiling of racial minorities. The ACLU has targeted other state law enforcement offices as well.

The United States has a history of racial profiling, and, in some cases, the incidents were particularly egregious. During WORLD WAR II, the U.S. government, fearful of potential spies from Japan, sent hundreds of thousands of Japanese Americans to detention camps in southern California. Many of those incarcerated were American citizens. In a decision that has largely been considered one of the most iniquitous in the history of the Supreme Court, KOREMATSU V. UNITED STATES, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 2d 194 (1944), the Court found that during times of war, the military should have discretion to make decisions regarding the incarceration of certain groups and that the government's actions in incarcerating Japanese Americans were justified.

During the SEPTEMBER 11TH ATTACKS,19 Middle Eastern terrorists carried out a terrorist plot that resulted in the destruction of the World Trade Center in New York, severe damage to the Pentagon in Washington, D.C., and a major loss of life. After the attacks, the United States announced it would wage a WAR ON TERRORISM, which included enhancements in the ability of law enforcement personnel to track, question, and even arrest individuals suspected of terrorist activities.

In the first two weeks after the attacks, federal officials arrested or detained more than 500 people. Thousands of resident ALIENS were also questioned. The vast majority of those questioned or arrested were Arab Americans or of Middle Eastern nationalities. Some commentators have suggested that the questioning of members of these nationalities and ethnic backgrounds is justified because a disproportionate number of terrorists are Arabic or Middle Eastern. However, civil rights groups have decried the practice of subjecting these individuals to questioning based solely on their race or ethnicity.

One of the most significant differences between racial profiling of African and Hispanic Americans and the profiling of potential terrorist threats is the level of support expressed by citizens for such profiling. According to statistics in 1999, 81 percent of respondents in a national poll disapproved of the practice of racial profiling, defined narrowly as the practice of police officers stopping motorists based solely on the race or ethnicity of those motorists. However, after the terrorist attacks, 58 percent of respondents in another poll favored the practice of subjecting Arabs to more intensive scrutiny when they boarded planes.

Other questions also have been raised about the profiling of Arabic and Middle Eastern individuals. Even if, in the post–September 11 period, profiling was acceptable to prevent a reoccurrence of terrorist attacks, for how long should this practice be acceptable? Moreover, if this practice is successful in preventing terrorist activities, should it be extended to other "suspect" groups, which may include African or Hispanic Americans?

These types of questions have been raised in other contexts. For example, commentators have suggested that the war on DRUGS AND NARCOTICS has clear overtones of racism. According to a study in 1986, an African American was six times as likely as a white American to go to jail for a drug related offense. By 1996, an African American was 22 times as likely to be incarcerated for such an offense. Because the war on drugs has been an ongoing battle, several commentators have suggested that profiling in this war has become perpetual.

Complaints of racial profiling are not limited to law enforcement personnel. Some department and other retail stores have been accused of denying service or giving inferior service to members of minority groups. Several establishments, including Eddie Bauer, Dillard's Department Stores, and Denny's Restaurants, have been sued in highly publicized cases in which plaintiffs have alleged that the establishments have discriminated on the basis of race. Complaints of discrimination against Arabic and Middle Eastern individuals have also been raised against private companies. In April 2003, the U.S. TRANSPORTATION DEPARTMENT submitted a complaint that American Airlines had removed from flights at least ten individuals suspected of being Middle Eastern, Southeast Asian, or Muslim.