Literature Review
Racial profiling is a term that has been used to imply racism in criminal justice and covers other social groups with or without the aspect of race. According an article by Schuck et al., it is imperative for definitions of racial profiling not to be conflated with other definitions used in law enforcement practices (2012, 497). For example, the authors point out that criminal profiling could be confused with racial profiling. Thus, they expound that profiling a criminal should be without racial profiling, whereby people of a given social group or race become suspects first. To a certain extent, the authors claim that proponents of racial profiling tend to invoke racial profiling as a method of criminal profiling. Thus, to Schuck et al., racial profiling has no legal support, and amounts to treating people as suspects first due to race. It is not similar to criminal profiling, whereby suspects are initially identified without consideration of race but due to legal factors.
For this research, some of the definitions adopted, and regarded to be comprehensive include one used by the Ontario Human Rights Commission. The commission was set up in 2003 in Ontario, Canada to inquire into the effects of racial profiling to individuals and the society in Ontario. In their report racial profiling is defined as “Any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, color, ethnicity, ancestry, religion, or place of origin, or a combination of these, rather than on a reasonable suspicion, to single out an individual for greater scrutiny or different treatment” (Ontario Human Rights Commission 2003, 6). Researchers put another broad definition together in a racial profiling guide that was an experimental study funded by US Department of Justice racial. They termed racial profiling as “any police-initiated action that relies on the race, ethnicity, or national origin rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity” (Ramirez et al. 2000, 3).
A legislated definition is in the End Racial Profiling Act (ERPA) of 2010, that refers to racial profiling as “the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, or religion in selecting which individual to subject to routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, or religion to an identified criminal incident or scheme.”
In expounding on what racial profiling entails, it is important to look at various attempts already made to illustrate the existence of racial profiling. Due to the discriminatory nature of racial profiling in law enforcement, leading to social uproar, it has caused numerous debates and studies on various aspects of racial profiling. Some of the empirical and descriptive works highlighting the practice and societal reactions follow this expose. Additionally, Carter writes that Thirteenth Amendment as a remedy to racial profiling. Use of race in profiling criminals is a continuation of slavery practices that is against the Fourteenth Amendment on equal treatment (17).
According to an article in the American Civil Liberties Union, racial profiling has affected a wide variety of social groups. After about two centuries since the era of slavery, and about nine decades of legalized racial segregation, it led to the present profiling of minorities in America. The article cites the escalation of the practice following September 11, 2001 attack. Airline personnel, federal law enforcement, and local police have profiled Muslims, Arabs, and South Asian communities. Racially profiling policies are, therefore, to blame for the lack of trust in criminal justice system. In addition, it leads to alienation of immigrants causing them to live in fear of discrimination or abuse. The police have also cited hate crimes in the article to be resultant from anti-immigrant racial profiling, due to suspicion of citizen Latinos and harassment.
In 2014, in St. Louis suburban, violent protests erupted after an 18-year old unarmed black student was shot dead by a white police officer. The act viewed as a perpetuation of historical racial segregation, led to outburst due to the segregation that existed in the region. A racial imbalance is evident in the majority white police officers deployed in the Ferguson police Department. Despite the region’s population being majorly Black people, white police officers disproportionately stop the blacks on the road. This is according to a New York Times editorial board article.
Hernandez –Murillo and John in their research entitled “Racial Profiling or Racist Policing? Bounds Tests in Aggregate Data” question the reliability of police statistics to establish existence of racial profiling. They acknowledge that statewide report on police traffic stops and searches offered powerful tools for identifying racial bias, however, they may be have statistical bias. The researchers formulated a racial profiling model in which they argued that differences in search rates by race should not be taken as evidence of racial bias because the statistics reflect both mandatory and discretionary searches. In their model, John and his partner refers to racial profiling, for example, as a police agent having a lower cost of search for that race, while non-felon motorists of race experiencing a higher utility gain from carrying contraband as a statistical discrimination (Hernandez –Murillo and John 2004, 965). The author found evidence for the existence of racial bias against Hispanic and African Americans. The research relied on previous study by Knowles, Persico and Todd of 2001 put forward assumptions. First, that police choose search rates by race to maximize overall find rates. Second, that the race of motorists is related to their probability of carrying contraband at a given search probability, and thirdly, that motorists respond to higher risks of search by reducing their probability of carrying.
Whether racial profiling is lawful or not has been a relenting debate, which at times introduced appropriateness of the practice dependent on criminal case in context. In one such research, racial profiling gained support. The researchers, Lee et al. established that profiles and stereotypes employed to create rational categories are an integral part of life (Lee et al. 2007, 89). Thus, it is right to use them in policing, as long prejudice does not manifest. However, the author indicates that the law enforcers should not divide people into groups based on ethnicity, race, age, or gender to prevent reports of biased profiling. The researchers further reveal that profiling or stereotyping certain behavioral or situational cues rather than ethnicity or race can increase the effectiveness of policing. The study did not identify clearly the impact of racial profiling.
A conflict theory side has also been associated with racial profiling in law enforcement. It is the claim that socioeconomic disparities determine the level of policing, and hence police agents tend to treat the underprivileged differently. For example, Persico examines the exact conditions under which compelling the law enforcers to behave more fairly reduces crime levels (2002, 1472). Due to the crime patterns, which indicate that the underprivileged are more involved in economic crimes, and as such, police tend to suspect them first. In the article, Persico argues that racial profiling can aid in effective policing. Thus, the society should accommodate the practice and trade-off between fairness and effective policing. The author acknowledges that the outcome of racial disparities is unfortunate, but it is lawful if unavoidable due to effective policing (Persico 2002, 1433). However, he noted that racial policing affected negatively on public trust in the law enforcement. The study upholds racial profiling despite the admission that it is not fair to the victims of prejudice. The costs to the focused race or ethnic members include damaged reputation, distress caused, time lost, shame, stigmatization by an observer upon being stopped and searched (1487).
A further look into the conflict theory and police is a study by Petrocelli, Alex and Michael R. (2003). In their report, they argue that “If law can be seen as the nails that hold society together, then police can certainly be viewed as the hammer of the state” (2). Conflict theory according to the authors holds that “law and the mechanisms of its enforcement are used by dominant groups in society to minimize threats to their interests posed by those whom they label as dangerous, especially minorities and the poor” (1). They utilized data from Richmond, Virginia Police Department to test the conflict theory and come up with conclusions. From the research, they concluded that: First, crime rate of a neighborhood correlated to the total number of stops by Richmond police. Second, that a higher percentage of Black population led to higher number of stops that resulted in a search. Third, both increased population of Black population and the neighborhood influenced the percentage of stops that ended in an arrest/summons.
Those who are in such positions of social power such as the police can also been examined through the Marxist’s perspective such as by Ralph Miliband (1983). Miliband writes that the ruling class uses the state as its instrument to dominate society by virtue of the interpersonal ties between state officials and economic elites. For Miliband, the elite who belong to the same capitalist class dominate the state, thus they influence the state organisations. State officials, therefore, share the same interests as owners of capital, and are linked to them through a wide array of various social, economic, and political ties. According to Marxist theorists, crime is “a product of inequitable economic relationships in a context of general poverty” (Miliband 1983, 59). Marxists argue that human nature is different from how people operate in the capitalist society.
The effect of conflict theory on society is explained in Stephen Spitzer’s (1975) theory on social junk and social dynamite. Spitzer’s Marxian analysis describes the problem of deviance and any possible resolutions as residing within the structure, not the individual. Social junk is known as the group of people who have fallen through the cracks of our social system and now rely on others for their basic needs. These folks cannot secure minimal resources for themselves and, therefore, depend on government assistance. They live under the poverty line and our generally a product of generational poverty. They have failed to secure a job due to lack of education, skills or an inability to function within limits imposed by available jobs. This group is costly but relatively harmless. Social dynamite refers to the group of people that have fallen through the cracks of our social system and become unruly and even violent. These people are also an outcome of generational poverty and need government assistance to survive though the difference is they rebel and commit crime to survive by stealing or selling drugs. Those that fall within the category of social dynamite are usually a younger generation. They feel alienated and generally attempt to demand political change through the wrong channels (Spitzer, 1975).
Rivera describes the situation in Seattle Washington, where racial profiling is an insidious issue. Efforts by the authorities to fight racial profiling, according to Rivera have been tackled with denial of existence. For example, inquiries into whether racial profiling is practiced starts with investigations of racial profiling rather than efforts to reduce the prevalent practice. The perception of many African Americans is that police officers hunt the African Americans, which has continued since historical times of racism. Some of the of racial profiling include fear, anxiety, humiliation, anger, resentment, and cynicism of the minorities due to the discrimination
Romero examines the effect of racial profiling on enforcement of immigration law enforcement on the Latino community. The author uses the case of a raid by police to Chandler area that had incidences of abuse of human rights. Police indiscriminately stopped and searched Mexican Americans rudely. The police targeted people who had Mexican appearances in terms of color, language spoken and area of shopping. The raids did not consider that some Mexicans were U. S citizens and, therefore, they generally stopped and humiliated all Americans of Mexican descent. The issue of economic state of the Latinos in the area is highlighted, whereby their being low income earners is linked to police brutality, unwarranted searches (2006, 447). The researcher used a case study approach where he analyzed data from the Chandler Roundup. This approach repressed ethnic minorities and placed them at risk before the law while assigning them as lacking rights. During immigration inspections, the law enforcers stopped these ethnic minorities, humiliated, demeaned, and embarrassed them (Romero 2006, 451). A report on the raid to the Attorney General also shows perpetuation of the might by the political class. The report is biased and does not help in improving the civil liberties of Mexicans, who were viewed as aliens despite belonging to America since the acquisition of Arizona from Mexico by America. Due to inappropriate treatment by the police, communities become defiant. A major limitation of this article is that a Mexican provided the information.
Schmalleger indicated that the American society is multicultural comprising of a wide variety of racial and ethnic heritages, incongruous values, diverse religions, and disparate traditions (2012, 32). The author indicated that racial profiling complicated the practice of the criminal justice due to the disagreement over what constitutes right or wrong.
A study by Weatherspoon (2004) examined ways of ending racial profiling of black in the enforcement of laws. The researcher aimed to determine viable remedies to the problem (34). As identified, racial profiling was a daily occurrence. On many occasions, African Americans were the primary victims of this practice, as they were perceived to engage in crime and lawlessness. The researcher argued that police officers often stop, search, and arrest this ethnic group without sufficient evidence to justify the action (36). This approach bred resentment between blacks and the police officers.
What influences police to practice racial profiling? Barnum and Perfetti in their research investigated the reasons why individual police officers tend to discriminate against minorities. Apart from historical background about racism that oppressed the African Americans, there have been social psychological influences that have influenced police behavior. Prejudice and discrimination according to the authors emanate from individuals. Discrimination is a preconceived attitude towards a certain group that leads to prejudice. Prejudice leads to stereotypical beliefs and feelings. The behaviors emanate from socialization, personality, economic competition or work aggravation (Barnum and Perfetti 2010, 183). Another source of disproportionate behavior is the unconscious cognitive activity that is implicit and subtle. The research tested models used to measure racial profiling in traffic stops, based on data recorded in Corner City, which has nearly the same proportions of ethnic group (184).
In his book “Profiles in Injustice: Why Racial Profiling Cannot Work”, Harris says that “because traffic stops account for 52 percent of contacts between law enforcement and American citizens, disparities in vehicle stops and searches are generally instrumental in defining the treatment of minorities by law enforcement (Harris 2002, 99). The author employs a conscientious and rigorous historical analysis of racial profiling. Through the analyses, he is able to show the failure of racial profiling in law enforcement and crime prevention citing even the 9/11 as a failure due to ineffectiveness of racial profiling. Harris outlines the various practices by police that amount to profiling that include; traffic stops, consent searches, and stop and frisks, and others. Harris has gone further to explain the illegality and failure of the tactics to deter crime. Empirical evidence from statistics such as police arrests augments the explanations. For example, he observes that despite a higher number of blacks stopped by police, a higher percentage of whites were stopped and arrested for violations. In chapter six, Harris is able to show how racial profiling occurs among the Latinos, Asians and Arabs (Harris 2002, 129-144). It serves to show that profiling does not only focus on Black Americans but also other ethnic minorities are victims of the discrimination and segregation.
According to an article by the U. S National Institute of Justice, research has shown that racial profiling has led to a negative view of the police by the minorities. Thus, minorities view the police with suspicion and mistrust. The singling out of minorities due to race or ethnicity has been reported frequently. Public perception of the law and legal policing are paramount for a democratic society. However, when the perception is negative, the minorities doubt the legitimacy of law enforcement and lead to distrust. It has serious consequences on how police interact with minority communities. Racial and ethnic minority perceptions that the police lack lawfulness and legitimacy, based largely on their interactions with the police, can lead to distrust of the police. Distrust of police has serious consequences on the legitimacy of law enforcement, and lose of legitimacy decreases the effectiveness of policing.
In a Washington Post article, Natarajan points on the constitutionality of racial profiling and the effects it has on minorities. For example, a social media campaign under #BlackLivesMatter movement was elicited by police brutality and killing of unarmed black people. The police acts have been against the constitution, and led to tragic instances and injuries to the minority members. Citing a report from the Leader Conference on Civil Rights, racial profiling is unfortunately widespread in United States. The unwarranted stop and search in Illinois has targeted the Hispanics and African Americans despite results showing that whites are twice likely to carry contraband. Such perpetual police stops have targeted the minorities. The author reports on new DOJ guidelines that could limit the use of racial profiling. The author concludes by suggesting that anti-profiling policies should be enacted and police trained on how to collect data on traffic stops and avoid racial profiling.
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