Profiling-A Self-Fulfilling Racist Policy

Date: 03/19/1999
Source: Wall Street Journal (NY)
Author: David A. Harris

As a law professor who has done a considerable amount of research and writing concerning the impact of "profile" traffic stops on African-Americans and other racial and ethnic minority groups, I respond to Jackson Toby's March 11 editorial-page commentary "Racial Profiling Doesn't Prove Cops Are Racist."

In his zeal to show that police are not racists, Mr. Toby concedes that police do indeed stop disproportionate numbers of African-Americans on the highways in an effort to ferret out drug trafficking. His argument is that this is not racism, but efficiency. Blacks are only 12% of the population, he argues, but they are over-represented among those arrested for crimes ranging from murder to larceny.

Therefore, police who want to catch people involved with drugs target blacks in order to catch more bad guys--what one might call "rational discrimination."

When examined closely, Mr. Toby's thinking is at best flawed and at worst the product of dangerous and costly racial stereotyping. First, he bases his efficiency argument for catching drug traffickers on statistics involving seven different crimes--but not drug trafficking. By inviting us to make the unsubstantiated assumption that blacks are also disproportionately involved with drugs (an assumption directly contradicted by available evidence he doesn't mention), Mr. Toby perpetuates the image of all blacks as drug users and sellers.

His casual characterization of black children as "more tempted to break society's rules" has the same damaging effect.

Mr. Toby's use of arrest data is just as misleading. Yes, it is true that blacks are disproportionately arrested for certain crimes.   But there is a strong relationship between looking for things and finding them. If police stop disproportionate numbers of black drivers, of course they will find evidence of crime on a disproportionate number of black drivers.

  Thus his view becomes a self-fulfilling prophecy: More blacks are arrested, so more blacks are criminals, so to catch more criminals, stop more blacks, which leads to more blacks arrested.

  Mr. Toby is correct that there is "a civil-liberties cost" to raced-based policing: a large number of law-abiding, tax-paying, hard-working African-American citizens will be subjected to encounters with the police that are often difficult, frightening and humiliating. But he feels this is a price worth paying.

  Yet we would never tolerate this kind of "rational discrimination" in other areas of life. If law enforcement adopts his way of thinking, efficiency would allow police to stop every black person; in effect, blackness would become a proxy for criminal involvement, and all African-Americans would be suspects every time they leave their homes.

  David A. Harris Visiting Professor of Law University of Michigan Law School Ann Arbor, Mich.