Racial Profiling
March 29, 2006
March 27, 2000
Race as a Marker of Crime in
Law
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Yick Wo v. Hopkins, 118 U.S. 356 (1886) –
Immigrant exclusion
Harrison Act, Ch. 1, 38 Stat. 785 (1914) – Drug
Prohibition
Korematsu v. United States, 323 U.S. 214 (1944)
– Japanese Internment
Terry’s Lost Racial Narrative
Papachristou v. City of Jacksonville, 405 U.S. 156
(1972) - loitering
U.S. v. Harvey, 16 F.3d 109, 115 (6th Cir. 1994)
– drug courier profile
Charles Stuart Stops in Boston – precursor to
Brown v Oneonta
Reinforcing Cases
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U.S. v Brignoni-Ponce (422 U.S. 873, 1975) – immigration
and vehicle searches
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“Profiles cease to become profiles when they become common
knowledge” – US Border Patrol agent
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Martinez-Fuerte (428 U.S. 543, 1976) - border
US v Lopez (328 F.Supp.1077, 1971) – airline
State v Ochoa (112 Ariz. 582, 544 P.2d. 1097, 1976) –
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U.S. v Mendenhall (446 U.S. 544, 1980) – airline and
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stolen cars
drugs
U.S. v Sokolow (490 U.S. 1, 1989) – airline and drugs
Whren v US, 517 U.S. 806 (1996) – drugs and cars
Brown v Oneonta – racial profile of suspect
Illinois v Wardlow (528 U . S . 119 , 2000) – neighborhood
as indicia of crime
Reinforcing Policies
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Border patrol, cited in Brignoni-Ponce
“Computer Assisted Profiling System”
(CAPS). (See Act Oct. 9, 1996, P.L. 104264, Title III, § 307, 110 Stat. 3252)
Operation Pipeline: DEA profiling strategy,
http://www.usdoj.gov/dea/programs/pipec
on.htm
Broken Windows – Targeting “Disorder”
Is This Racial Profiling?
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Gross and Livingston: “’Racial profiling’ occurs whenever
a law enforcement officer questions, stops, arrests,
searches, or otherwise investigates a person because the
officer believes that members of that person's racial or
ethnic group are more likely than the population at large
to commit the sort of crime the officer is
investigating…..If the officer's conduct is based at least
in part on such a general racial or ethnic judgment, it
does not matter if she uses other criteria as well in
deciding on her course of action..”
See, also, Deborah Ramirez et al., A Resource Guide on
Racial Profiling Data Collection Systems (Nov. 2000) at
http://www.usdoj.gov/cops/pdf/cp_resources/pubs_prod
/police_practices_ handout/Section6.pdf
Litigation Responses
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Racial Profiling
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United States v. New Jersey, No. 99-5970 (D. N.J. December 30, 1999)
(consent decree entered);
Memorandum of Agreement, Between the USDOJ, Montgomery County (MD)
Department of Police, and the Fraternal Order of Police, Montgomery County
Lodge 35, Inc., January 14, 2000,
http//www.usdoj.gov/crt/cor/Pubs/mcagrmt.htm, visited December 5, 2000;
United States v. City of Los Angeles, No. 00-11769 (C.D. California) (consent
decreed)
See, also, http://www.racialprofilinganalysis.neu.edu/legislation/doj.php
Hybrid Claims (Use of Force and Racial Profiling)
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United States v. City of Pittsburgh, 97-0354 (W.D. Pa. Apr. 16, 1997) (consent
decree entered)
United States v. City of Steubenville, C2-97-966 (S.D. Ohio Sept. 3, 1997)
(consent decree entered),
http://usdoj.gov/cit/split/documents/steubensa.htm;
In re Cincinnati Policing, C-1-99-317 (S.D.Ohio 2002),
http://www.usdoj.gov/crt/split/Cincmoafinal.htm
United States v. Highland Park (IL), 00-C-4212 (2001),
http://www.usdoj.gov/crt/split/documents/Highland_MA.htm
Legal Claims
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Not very complex
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Intersection of 4th and 14th Amendments
42 U.S.C. §1983, 42 U.S.C. §14141
4th Amendment
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Reasonable suspicion that “…criminal activity is afoot”
… “based on experience, observations, and/or
information from others”
Suspect can be briefly detained “by means of physical
force or by show of authority”
Frisk is an easy path once a stop is effected
See People v. DeBouer for details on controlling law in
NYS
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14th Amendment
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Race alone cannot justify intrusion (Daniels et
al)
Race is part of suspect description can justify
a stop (Brown v Oneonta)
Race cannot be a basis of reasonable
suspicion apart from another factor (US v
Whren, US v. Brignoni-Ponce)
What Signals Suspicion?
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Easier to say what doesn’t legally signal
suspicion
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Bulge in waistband
Refusal to identify yourself
Nervousness
Flight (see Wardlow)
Location
Suspicious companions
Highway Context?
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“Hard Driving”
Vehicle profiling, Driver/vehicle profiling
Standards of Proof
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Disparate Impact v. Individualized
Discrimination standards complicate 14th
Amendment analysis, easier path to either
marry 4th and 14th or pursue action based
on 4th amendment alone
See, Ian Ayres, Pervasive Prejudice (2002)
What standard?
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Disparate impact
“But for race…..”
Research Challenges
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Street Stops and Highway Stops require different
measures of the same data, but with different
validity and conceptual challenges
Street Stops
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Have to index stop rate to crime rate, not population
rate
What is base rate of crime? How measured? Rate
per population index, but what population? Daytime
versus nighttime estimates?
Separate estimates by type of crime, since rationales
vary
Time of day? Day of week?
Highway Stops
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Similar issues, though race-specific violation rates are
harder to determine
Research Strategies
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Estimating the Base Rate
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Street Stops
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Data Collection for Stops
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Compliance issues
Accuracy issues
Understanding Interactions
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UK Strategy (www.homeoffice.gov.uk/rds/policerspubs1.html)
NYC Strategy (use crime rates in previous years)
Highway Stops (observational strategies)
Who is selected for stops? Why?
Who is asked for consensual search? Why?
The Legality of Stops – subjective analysis of “suspicion”
Analytic Models
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Causal Modeling
Systemic or Equilibrium Modeling
The Evidence: NYC Study
Source: Gelman, Fagan and Kiss, in press
Source: Gelman, Fagan and Kiss, in press
Constitutionality of Stops and Searches
TABLE II.B.4.
ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATED
CITYWIDE SAMPLE
RACE OF PERSON STOPPED
Black
Hispanic
White
Other
Total
Count
Row %
Column %
1172
55.4%
64.3%
690
32.6%
65.4%
192
9.1%
60.4%
60
2.8%
69.8%
2114
100.0%
64.4%
Count
Row %
Column %
281
61.2%
15.4%
133
29.0%
12.6%
36
7.8%
11.3%
9
2.0%
10.5%
459
100.0%
14.0%
Insufficient Information
Count
Row %
Column %
370
52.2%
20.3%
232
32.7%
22.0%
90
12.7%
28.3%
17
2.4%
19.8%
709
100.0%
21.6%
Total
Count
Row %
Column %
1823
55.5%
100%
1055
32.1%
100%
318
9.7%
100%
86
2.6%
100%
3282
100%
100%
Facts, as stated, articulate
reasonable suspicion
Facts, as stated, do not
articulate reasonable
suspicion
Evidence – MD Highway Study
Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)
Is Profiling Really Just a Search for
Efficiency?
Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)
Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)
Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)
Engines of Profiling
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Formation of Suspicion (Alpert research)
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Implicit Attributional Bias (Banaji research)
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Stereotyping
Primed Behavior (Graham research)
Institutional Narrowing
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Cues, Signaling, Disorder
Reinforcement of cognitive schema through
organizational preferences
McFadden’s “knowledge”
Attributions of meaning to interactions, places
Role of Law in Shaping Institutional and
Individual Behavior?
Remedying Racial Profiling
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Litigation – see Daniels requirements
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Transparency via Information Massing
Accountability
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Data
Compliance
Identification and sanctions of violators
Modifying Institutional Norms