Ethics Articles

Articles: Profiling


>> = Important Articles; ** = Major Articles


In Defense of Racial Profiling (NRO, 010208)

No to Racial Profiling (NRO, 010208)

Defending Racial Profiling — Again (NRO, 010209)

You Can’t Judge A Crook By His Color (NRO, 000101)

Stereotypes Aren’t So Bad Academia weighs in (NRO, 010201)

What About Negative Stereotypes? The racial-profiling debate continues (NRO, 010220)

Terror Probe Changes Face of Racial Profiling Debate (NRO, 011002)

Blacks for Profiling Criminal vs. terrorist profiling (NRO, 020206)

Mind Your Own Business: Privacy fight in California (NRO, 020625)

Profiling vs. Profiling vs. Profiling: Let’s retire the verb (NRO, 021115)

Study finds races treated equally (National Post, 030221)

Evidence Outed: Trooper pays for profiling (NRO, 030923)

Unreasonable Searches: Policing without profiling makes no sense (National Review, 050829)

Ethnic Profiling (Free Congress Foundation, 050822)

Reasonable and Realistic Profiling– Willie Sutton: Where Are You? (Free Congress Foundation, 050829)

Reporting While Wrong: The New York Times peddles more ‘driving while black’ malarkey (National Review Online, 050926)





In Defense of Racial Profiling (NRO, 010208)


Where is our common sense?


By John Derbyshire, National Review contributing editor & NRO columnist


Racial profiling” has become one of the shibboleths of our time. Anyone who wants a public career in the United States must place himself on record as being against it. Thus, ex-senator John Ashcroft, on the eve of his confirmation hearings: “It’s wrong, inappropriate, shouldn’t be done.” During the vice-presidential debate last October, moderator Bernard Shaw invited the candidates to imagine themselves black victims of racial profiling. Both made the required ritual protestations of outrage. Lieberman: “I have a few African-American friends who have gone through this horror, and you know, it makes me want to kind of hit the wall, because it is such an assault on their humanity and their citizenship.” Cheney: “It’s the sense of anger and frustration and rage that would go with knowing that the only reason you were stopped…was because of the color of your skin…” In the strange, rather depressing, pattern these things always follow nowadays, the American public has speedily swung into line behind the Pied Pipers: Gallup reports that 81 percent of the public disapproves of racial profiling.


All of which represents an extraordinary level of awareness of, and hostility to, and even passion against (“hit the wall…”) a practice that, up to about five years ago, practically nobody had heard of. It is, in fact, instructive to begin by looking at the history of this shibboleth.


To people who follow politics, the term “racial profiling” probably first registered when Al Gore debated Bill Bradley at New York’s Apollo Theatre in February 2000. Here is Bradley, speaking of the 1999 shooting of African immigrant Amadou Diallo by New York City police: “I…think it reflects…racial profiling that seeps into the mind of someone so that he sees a wallet in the hand of a white man as a wallet, but a wallet in the hand of a black man as a gun. And we — we have to change that. I would issue an executive order that would eliminate racial profiling at the federal level.”


Nobody was unkind enough to ask Sen. Bradley how an executive order would change what a policeman sees in a dark lobby in a dangerous neighborhood at night. Nor was anyone so tactless as to ask him about the case of LaTanya Haggerty, shot dead in June 1999 by a Chicago policewoman who mistook her cell phone for a handgun. The policewoman was, like Ms. Haggerty, black.


Al Gore, in that debate at the Apollo, did successfully, and famously, ambush Bradley by remarking that: “You know, racial profiling practically began in New Jersey, Senator Bradley.” In true Clinton-Gore fashion, this is not true, but it is sort of true. “Racial profiling” the thing has been around for as long as police work, and is practiced everywhere. “Racial profiling” the term did indeed have its origins on the New Jersey Turnpike in the early 1990s. The reason for the prominence of this rather unappealing stretch of expressway in the history of the phenomenon is simple: The turnpike is the main conduit for the shipment of illegal drugs and other contraband to the great criminal marts of the Northeast.


The career of the term “racial profiling” seems to have begun in 1994, but did not really take off until April 1998, when two white New Jersey state troopers pulled over a van for speeding. As they approached the van from behind, it suddenly reversed towards them. The troopers fired eleven shots from their handguns, wounding three of the van’s four occupants, who were all black or Hispanic. The troopers, James Kenna and John Hogan, subsequently became poster boys for the “racial profiling” lobbies, facing the same indignities, though so far with less serious consequences, as were endured by the Los Angeles policemen in the Rodney King case: endless investigations, double jeopardy, and so on.


And a shibboleth was born. News-media databases list only a scattering of instances of the term “racial profiling” from 1994 to 1998. In that latter year, the number hit double digits, and thereafter rose quickly into the hundreds and thousands. Now we all know about it, and we are, of course, all against it.


Well, not quite all. American courts — including (see below) the U.S. Supreme Court — are not against it. Jurisprudence on the matter is pretty clear: So long as race is only one factor in a generalized approach to the questioning of suspects, it may be considered. And of course, pace Candidate Cheney, it always is only one factor. I have been unable to locate any statistics on the point, but I feel sure that elderly black women are stopped by the police much less often than are young white men.


Even in the political sphere, where truth-telling and independent thinking on matters of race have long been liabilities, there are those who refuse to mouth the required pieties. Alan Keyes, when asked by Larry King if he would be angry with a police officer who pulled him over for being black, replied: “I was raised that everything I did represented my family, my race, and my country. I would be angry with the people giving me a bad reputation.”




Practically all law-enforcement professionals believe in the need for racial profiling. In an article on the topic for The New York Times Magazine in June 1999, Jeffrey Goldberg interviewed Bernard Parks, chief of the Los Angeles Police Department. Parks, who is black, asked rhetorically of racial profiling: “Should we play the percentages?…It’s common sense.” Note that date, though. This was pretty much the latest time at which it was possible for a public official to speak truthfully about racial profiling. Law-enforcement professionals were learning the importance of keeping their thoughts to themselves. Four months before the Goldberg piece saw print, New Jersey state-police superintendent Carl Williams, in an interview, said that certain crimes were associated with certain ethnic groups, and that it was naïve to think that race was not an issue in policing — both statements, of course, perfectly true. Supt. Williams was fired the same day by Gov. Christie Todd Whitman.


Like other race issues in the U.S., racial profiling is a “tadpole,” with an enormous black head and a long but comparatively inconsequential brown, yellow, and red tail. While Hispanic, “Asian-American,” and other lesser groups have taken up the “racial profiling” chant with gusto, the crux of the matter is the resentment that black Americans feel toward the attentions of white policemen. By far the largest number of Americans angry about racial profiling are law-abiding black people who feel that they are stopped and questioned because the police regard all black people with undue suspicion. They feel that they are the victims of a negative stereotype.


They are. Unfortunately, a negative stereotype can be correct, and even useful. I was surprised to find, when researching this article, that within the academic field of social psychology there is a large literature on stereotypes, and that much of it — an entire school of thought — holds that stereotypes are essential life tools. On the scientific evidence, the primary function of stereotypes is what researchers call “the reality function.” That is, stereotypes are useful tools for dealing with the world. Confronted with a snake or a fawn, our immediate behavior is determined by generalized beliefs — stereotypes — about snakes and fawns. Stereotypes are, in fact, merely one aspect of the mind’s ability to make generalizations, without which science and mathematics, not to mention, as the snake/fawn example shows, much of everyday life, would be impossible.


At some level, everybody knows this stuff, even the guardians of the “racial profiling” flame. Jesse Jackson famously, in 1993, confessed that: “There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery, then look around and see somebody white and feel relieved.” Here is Sandra Seegars of the Washington, D.C., Taxicab Commission:


Late at night, if I saw young black men dressed in a slovenly way, I wouldn’t pick them up…. And during the day, I’d think twice about it.


Pressed to define “slovenly,” Ms. Seegars elaborated thus: “A young black guy with his hat on backwards, shirttail hanging down longer than his coat, baggy pants down below his underwear, and unlaced tennis shoes.” Now there’s a stereotype for you! Ms. Seegars is, of course, black.


Law-enforcement officials are simply employing the same stereotypes as you, me, Jesse, and Sandra, but taking the opposite course of action. What we seek to avoid, they pursue. They do this for reasons of simple efficiency. A policeman who concentrates a disproportionate amount of his limited time and resources on young black men is going to uncover far more crimes — and therefore be far more successful in his career — than one who biases his attention toward, say, middle-aged Asian women. It is, as Chief Parks said, common sense.


Similarly with the tail of the tadpole — racial-profiling issues that do not involve black people. China is known to have obtained a top-secret warhead design. Among those with clearance to work on that design are people from various kinds of national and racial background. Which ones should investigators concentrate on? The Swedes? The answer surely is: They should first check out anyone who has family or friends in China, who has made trips to China, or who has met with Chinese officials. This would include me, for example — my father-in-law is an official of the Chinese Communist Party. Would I then have been “racially profiled”?


It is not very surprising to learn that the main fruit of the “racial profiling” hysteria has been a decline in the efficiency of police work. In Philadelphia, a federal court order now re quires police to fill out both sides of an 8½-by-11 sheet on every citizen contact. Law-enforcement agencies nationwide are engaged in similar statistics-gathering exercises, under pressure from federal lawmakers like U.S. Rep. John Conyers, who has announced that he will introduce a bill to force police agencies to keep detailed information about traffic stops. (“The struggle goes on,” declared Rep. Conyers. The struggle that is going on, it sometimes seems, is a struggle to prevent our police forces from accomplishing any useful work at all.)


The mountain of statistics that is being brought forth by all this panic does not, on the evidence so far, seem likely to shed much light on what is happening. The numbers have a way of leading off into infinite regresses of uncertainty. The city of San Jose, Calif., for example, discovered that, yes, the percentage of blacks being stopped was higher than their representation in the city’s population. Ah, but patrol cars were computer-assigned to high-crime districts, which are mainly inhabited by minorities. So that over-representation might actually be an under-representation! But then, minorities have fewer cars….




Notwithstanding the extreme difficulty of finding out what is actually happening, we can at least seek some moral and philosophical grounds on which to take a stand either for or against racial profiling. I am going to take it as a given that most readers of this article will be of a conservative inclination, and shall offer only those arguments likely to appeal to persons so inclined. If you seek arguments of other kinds, they are not hard to find — just pick up your newspaper or turn on your TV.


Of arguments against racial profiling, probably the ones most persuasive to a conservative are the ones from libertarianism. Many of the stop-and-search cases that brought this matter into the headlines were part of the so-called war on drugs. The police procedures behind them were ratified by court decisions of the 1980s, themselves mostly responding to the rising tide of illegal narcotics. In U.S. vs. Montoya De Hernandez (1985) for example, Chief Justice Rehnquist validated the detention of a suspected “balloon swallowing” drug courier until the material had passed through her system, by noting previous invasions upheld by the Court:


[F]irst class mail may be opened without a warrant on less than probable cause…. Automotive travellers may be stopped…near the border without individualized suspicion even if the stop is based largely on ethnicity…


(My italics.) The Chief Justice further noted that these incursions are in response to “the veritable national crisis in law enforcement caused by smuggling of illegal narcotics.”


Many on the political Right feel that the war on drugs is at best misguided, at worst a moral and constitutional disaster. Yet it is naïve to imagine that the “racial profiling” hubbub would go away, or even much diminish, if all state and federal drug laws were repealed tomorrow. Black and Hispanic Americans would still be committing crimes at rates higher than citizens of other races. The differential criminality of various ethnic groups is not only, or even mainly, located in drug crimes. In 1997, for example, blacks, who are 13 percent of the U.S. population, comprised 35 percent of those arrested for embezzlement. (It is not generally appreciated that black Americans commit higher levels not only of “street crime,” but also of white-collar crime.)


Even without the drug war, diligent police officers would still, therefore, be correct to regard black and Hispanic citizens — other factors duly considered — as more likely to be breaking the law. The Chinese government would still be trying to recruit spies exclusively from among Chinese-born Americans. (The Chinese Communist Party is, in this respect, the keenest “racial profiler” of all.) The Amadou Diallo case — the police were looking for a rapist — would still have happened.


The best non-libertarian argument against racial profiling is the one from equality before the law. This has been most cogently presented by Prof. Randall Kennedy of Harvard. Kennedy concedes most of the points I have made. Yes, he says:


Statistics abundantly confirm that African Americans — and particularly young black men — commit a dramatically disproportionate share of street crime in the United States. This is a sociological fact, not a figment of the media’s (or the police’s) racist imagination. In recent years, for example, victims of crime report blacks as the perpetrators in around 25 per cent of the violent crimes suffered, although blacks constitute only about twelve percent of the nation’s population.


And yes, says Prof. Kennedy, outlawing racial profiling will reduce the efficiency of police work. Nonetheless, for constitutional and moral reasons we should outlaw the practice. If this places extra burdens on law enforcement, well, “racial equality, like all good things in life, costs something; it does not come for free.”


There are two problems with this. The first is that Kennedy has minimized the black-white difference in criminality, and therefore that “cost.” I don’t know where his 25 percent comes from, or what “recent years” means, but I do know that in Department of Justice figures for 1997, victims report 60 percent of robberies as having been committed by black persons. In that same year, a black American was eight times more likely than a non-black to commit homicide — and “non-black” here includes Hispanics, not broken out separately in these figures. A racial-profiling ban, under which police officers were required to stop and question suspects in precise proportion to their demographic representation (in what? the precinct population? the state population? the national population?), would lead to massive inefficiencies in police work. Which is to say, massive declines in the apprehension of criminals.


The other problem is with the special status that Prof. Kennedy accords to race. Kennedy: “Racial distinctions are and should be different from other lines of social stratification.” Thus, if it can be shown, as it surely can, that state troopers stop young people more than old people, relative to young people’s numerical representation on the road being patrolled, that is of no consequence. If they stop black people more than white people, on the same criterion, that is of large consequence. This, in spite of the fact that the categories “age” and “race” are both rather fuzzy (define “young”) and are both useful predictors of criminality. In spite of the fact, too, that the principle of equality before the law does not, and up to now has never been thought to, guarantee equal outcomes for any law-enforcement process, only that a citizen who has come under reasonable suspicion will be treated fairly.


It is on this special status accorded to race that, I believe, we have gone most seriously astray. I am willing, in fact, to say much more than this: In the matter of race, I think the Anglo-Saxon world has taken leave of its senses. The campaign to ban racial profiling is, as I see it, a part of that large, broad-fronted assault on common sense that our over-educated, over-lawyered society has been enduring for some forty years now, and whose roots are in a fanatical egalitarianism, a grim determination not to face up to the realities of group differences, a theological attachment to the doctrine that the sole and sufficient explanation for all such differences is “racism” — which is to say, the malice and cruelty of white people — and a nursed and petted guilt towards the behavior of our ancestors.


At present, Americans are drifting away from the concept of belonging to a single nation. I do not think this drift will be arrested until we can shed the idea that deference to the sensitivities of racial minorities — however overwrought those sensitivities may be, however over-stimulated by unscrupulous mountebanks, however disconnected from reality — trumps every other consideration, including even the maintenance of social order. To shed that idea, we must confront our national hysteria about race, which causes large numbers of otherwise sane people to believe that the hearts of their fellow citizens are filled with malice towards them. So long as we continue to pander to that poisonous, preposterous belief, we shall only wander off deeper into a wilderness of division, mistrust, and institutionalized rancor — that wilderness, the most freshly painted signpost to which bears the legend RACIAL PROFILING.




No to Racial Profiling (NRO, 010208)


Rational but wrong.


Mr. Clegg is general counsel of the Center for Equal Opportunity


John Derbyshire has an article in the current (Feb. 19) issue of National Review entitled, “In Defense of Racial Profiling: Where Is Our Common Sense?” I am a great fan of Mr. Derbyshire’s, and even in this article there is much with which I agree. But his conclusion — that racial profiling is an acceptable policy — is wrong.


Mr. Derbyshire is correct in his major premise, that racial profiling is perfectly rational. A disproportionate amount of street crime is committed by people who are young, and male, and black, and if you are all three then it makes perfect sense for the police to keep an especially keen eye on you, and pull you over more often, question you more carefully, and press you more aggressively to allow a search of your car. That is, it makes perfect sense if all the police are trying to do is maximize in the short term the number of their successful searches and arrests.


But that is not the police’s overarching mission. They have to think of the long-term, too, and successful policing requires the cooperation of the rest of the community. If racially biased policing is an established policy, then that cooperation will be jeopardized. Moreover, the order which the police are charged with maintaining includes not just the prevention of crime but the racially unbiased treatment of law-abiding citizens.


Let’s put the shoe on the other foot. The Left frequently supports the use of racial and ethnic preferences in university admissions, arguing that this discrimination is justified because it increases classroom racial and ethnic diversity, and racial and ethnic diversity results in greater viewpoint diversity. The conservative response is that, even if it is true that you might increase “diversity” this way, and even if it is true that such diversity has educational advantages, it’s just not worth it. That is, it’s not that discrimination is irrational in terms of a particular narrow goal, but that the countervailing costs — the unfairness, sacrifice of principle, resentment, stigmatization, and so forth — are too great.


Maybe the odds favor a black student’s being disadvantaged or having an activist view, but there will be exceptions, just as most blacks are law-abiding. Finally, conservatives in the college-admissions context quickly and correctly reject the leftist defense that race is “just one factor” because, whenever it is the deciding factor, then in those cases discrimination on the basis of race has occurred. The same, pace Mr. Derbyshire, is true for profiling.


Here’s another example. Suppose that a city agency is interested in hiring only people with a high-school diploma, and in that city the overwhelming majority of whites have a diploma and the overwhelming majority of Hispanics don’t. Rather than have to go to the trouble of checking out the records of each applicant, it may be much more cost-efficient simply to hire all whites and no Hispanics. But I think that most of us would insist that each applicant be assessed individually. (Clearly, that is what the law requires.)


Let me now hasten to add some points on which Mr. Derbyshire and I agree. I am not condemning decisionmaking that relies on neutral criteria that happen to have a disproportionate effect on some racial or ethnic group. For instance, if Mayor Giuliani decides to adopt aggressive but race-neutral policing tactics — like sending more beat patrolmen into high-crime areas — that’s perfectly fine, even if it results in arrests that are disproportionately African American. Or, in my earlier examples, there is nothing wrong with a college insisting on high SATs or a city agency on high-school diplomas, even if that has a disproportionate effect on some racial or ethnic groups.


Nor, of course, do I have any problem with the police including race or ethnicity in the description of a particular suspect. To be sure, the lines can blur between this and racial profiling. In upstate New York recently, for example, the police decided to question every black in a small town because they were looking for a black robbery suspect and there weren’t very many blacks there. The court, correctly in my view, upheld the police. But over the line, again in my opinion, would be a decision to stop all Hispanic youths in a neighborhood and search them for drugs because the police knew there was a drug-dealing Hispanic gang there. The difference between the two cases is that a specific crime being investigated in the first example, but not in the second.


I also agree with Mr. Derbyshire that requiring individual policemen to record the race of each person they stop is a bad idea, because it will pressure them to stop some people they might not really need to stop, while passing up some other people that they do. I was told that the District of Columbia’s police chief — who happens to be black — made exactly this point in a recent interview. He didn’t like the record-keeping proposal. If I’ve already stopped two black men on a particular evening, he said, I may be reluctant to stop a third, even if would make sense to.


Mr. Derbyshire deserves credit for presenting Professor Randall Kennedy’s arguments against racial profiling — and indeed he fails to refute them. Being stopped or searched because of your race is a big deal. It’s a much bigger deal than being stopped because one is male or young in light of our sad history of racism. And one can reject racial profiling without requiring racial quotas for arrests. Indeed, both should be rejected for the same reason: The state should be colorblind.


Mr. Derbyshire concludes with a stirring warning that “Americans are drifting away from the concept of belonging to a single nation.” I agree. I also agree that listening to people like Al Sharpton is a recipe for social disaster. But where I think Mr. Derbyshire is wrong is in his apparent belief that a police policy of stopping individuals because of their race — even if it is just one of the factors considered — is consistent with “the concept of belonging to a single nation.” It isn’t.




Defending Racial Profiling — Again (NRO, 010209)


Why Roger Clegg is wrong.


Mr. Derbyshire is also an NR contributing editor


appreciate Roger Clegg’s taking the trouble to read my article “In Defense of Racial Profiling” in the print National Review, and his thoughtful response to it. The editor suggested posting Mr. Clegg’s response on our website, followed by my comments about it. I was very glad to agree to this. This is an important issue, and there can never be enough calm, reasoned debate about it. There can, of course, very soon be enough — there is already way too much! — yelling, posturing, and intimidating about racial profiling, and other race issues.


Mr. Clegg rests his main case on Randall Kennedy’s argument that racial profiling, though reasonable, is immoral and socially inflammatory. So would I have done: Kennedy’s piece is brilliant. I did not have space to do justice to it in my print article, and have not here either, so I urge anyone interested in this subject to seek out the essay and read it for himself. I do not see how a better case against racial profiling can be made, and anyone who wants to defend the practice, as I do, must show why Prof. Kennedy is wrong. Where arguments against racial profiling are concerned, Kennedy is the gold standard.


Unless you are an adherent of one of the more demanding religious confessions, the essence of moral wrong — the lowest common-denominator essence, I mean, that all modern people can agree on — is the wish to harm, or at the very least to vex, somebody else. That is really what underlies the case against racial profiling: The conviction that policemen who preferentially detain black people do so because they bear ill will towards the black race. They want to keep us down, the way they used to. Racial profiling is a manifestation of white racism — that is the heart of the matter.


I had better say right now — Mr. Clegg might want to sit down for this one — that I do not believe in white racism, except as a fringe phenomenon at the very bottom of society. Yes, white Americans used to keep black Americans down, though this should never be said without noting that very large numbers of white Americans were always unhappy with the arrangement. That, however, was then, and this is now. Like promiscuous smoking, though much more effectively and thoroughly, the malice that many white people felt toward blacks has been almost shamed out of existence in the past 40 years. I have been living in the United States for 15 of those years, mainly among white Americans. I have known several hundred white Americans, of all ages and classes (and including a handful of policemen), well enough to say confidently that I don’t believe a single one of them bore any ill will towards black people.


The following statement is true, as best I can judge, of every white American I have ever known: He would be happier in himself, and would feel better about his country, if the statistical profiles of black American lives and behaviors were identical with those of whites. The fact that they are not, is distressing to everybody I know, though of course in very varying degrees.


There are many opinions about the reasons for those statistical differences. Quite a lot of white Americans, unlike me, believe in the reality of white racism as a major social force. Many, on the other hand — a fast-growing number, it seems to me — believe that there is some deep, intractable, and presumably biological reason why persons of West African descent or part-descent do not (statistically speaking) do well in our society. Whatever you might think of this belief, I can tell you for sure that when it fixes itself on a white person’s mind, it does not induce glee: Great! This means we’ll be able to keep them down for ever, the way we used to! What it induces is despair: Oh God, we’re stuck with this damn race thing for ever! White Americans do not want a race-divided society. There is hardly anything they want less.


Suppose I am right — as, of course, I think I am — in believing that white racism is a vanishingly insignificant phenomenon in current American life. What then happens to Randall Kennedy’s argument from morality? It seems to me that it collapses, for it is based on the belief that without enforced, supervised restraints, the racism of white policemen will bubble up irresistibly, causing them to commit wrongs against black people. If that racism does not exist, except very occasionally, how can the restraints be justified, when their effect would be, as Kennedy admits (while, as I argued in my print piece, seriously under-estimating this effect) socially negative? If white policemen pulling over black motorists mean no harm, and restraints on them doing so will greatly increase crime — a very harmful thing to its victims — where is the point of moral balance? Kennedy suggests we restore that balance by hiring more policemen. This does not sound to me very sincere, or very convincing.


But what about “socially inflammatory”? Even if policemen are not acting immorally in preferentially detaining black people, is the anger and resentment of black people worth it? That’s a big social negative by itself, isn’t it? Yes it is, but I don’t see what we can honestly do about it, other than keep trying to show that police procedures are reasonable, and correcting them if they are not. If a reasonable and useful policy makes people unreasonably angry, I personally would stick with the policy and work on the people…. Though, reading back over that last sentence, I do see that is the kind of assertion that might cause a professional politician to double over laughing.


And where the police have not been reasonable, where there has been a real injustice — where it can be shown that a person has been inconvenienced for no other reason than his race — current laws already provide sufficient remedy. Certainly our citizens seem to believe they do: They are suing police departments for racial profiling malfeasances left, right, and center. Let me introduce you to Mr. Robert Hluchan, for example, a white driver pulled over in a black neighborhood of Philadelphia and made to stand handcuffed for 20 minutes while cops strip-searched his BMW. He has filed a lawsuit against that city for racial profiling. The police thought he was cruising for drugs; in fact he was visiting his girlfriend, who is black.


There is much more to say about this. I personally have much, much more. My first draft of this rejoinder went to 3,000 words, but the webmaster threatened to resign and I had to cut it to 1,000. I hope to come back to the issue in a future web column: I hope NRO will publish more dissents by Roger Clegg and anyone else who has a contribution and can express himself with Mr. Clegg’s clarity and fluency. I started out my print piece by calling racial profiling “a shibboleth of our time.” I don’t like shibboleths. If we can debate this stuff frankly and sensibly, without posturing, self-righteousness, moral blackmail, and bogus displays of indignation, then whatever we collectively decide to do about this issue, at least we shall be one shibboleth the less.




You Can’t Judge A Crook By His Color (NRO, 000101)


Pubdate: Sat, 01 Jan 2000




Author: Randall Kennedy, The New Republic


Note: Originaly published in The New Republic (Sept. 13, 1999).


Racial Profiling May Be Justified, But It’S Still Wrong


In Kansas City, a Drug Enforcement Administration officer stops and questions a young man who has just stepped off a flight from Los Angeles. The officer has focused on this man because intelligence reports indicate that black gangs in L.A. are flooding the Kansas City area with illegal drugs. Young, toughly dressed, and appearing nervous, he paid for his ticket in cash, checked no luggage, brought two carryon bags, and made a beeline for a taxi when he arrived. Oh, and one other thing: The young man is black. When asked why he decided to question this man, the officer declares that he considered race, along with other factors, because doing so helps him allocate limited time and resources efficiently.


Should we applaud the officer’s conduct? Permit it? Prohibit it? This is not a hypothetical example. Encounters like this take place every day, all over the country, as police battle street crime, drug trafficking, and illegal immigration. And this particular case study happens to be the reallife scenario presented in a federal lawsuit of the early ‘90s, United States v. Weaver, in which the 8th U.S. Circuit Court of Appeals upheld the constitutionality of the officer’s action.


“Large groups of our citizens,” the court declared, “should not be regarded by law enforcement officers as presumptively criminal based upon their race.” The court went on to say, however, that “facts are not to be ignored simply because they may be unpleasant.” According to the court, the circumstances were such that the young man’s race, considered in conjunction with other signals, was a legitimate factor in the decision to approach and ultimately detain him. “We wish it were otherwise,” the court maintained, “but we take the facts as they are presented to us, not as we would like them to be.” Other courts have agreed that the Constitution does not prohibit police from considering race, as long as they do so for bona fide purposes of law enforcement (not racial harassment) and as long as it is only one of several factors.


These decisions have been welcome news to the many law enforcement officials who consider what has come to be known as racial profiling an essential weapon in the war on crime. They maintain that, in areas where young African American males commit a disproportionate number of the street crimes, the cops are justified in scrutinizing that sector of the population more closely than others just as they are generally justified in scrutinizing men more closely than they do women.


As Bernard Parks, chief of the Los Angeles Police Department, explained to Jeffrey Goldberg of The New York Times Magazine: “We have an issue of violent crime against jewelry salespeople.... The predominant suspects are Colombians. We don’t find Mexican Americans, or blacks, or other immigrants. It’s a collection of “several hundred Colombians who commit this crime.” If you see six in a car in front of the Jewelry Mart, and they’re waiting and watching people with briefcases, should we play the percentages and follow them? It’s common sense.


Cops like Parks say that racial profiling is a sensible, statistically based tool. Profiling lowers the cost of obtaining and processing crime information, which in turn lowers the overall cost of doing the business of policing. And the fact that a number of cops who support racial profiling are black, including Parks, buttresses claims that the practice isn’t motivated by bigotry. Indeed, these police officers note that racial profiling is race neutral in that it can be applied to persons of all races, depending on the circumstances. In predominantly black neighborhoods in which white people stick out (as potential drug customers or racist hooligans, for example), whiteness can become part of a profile. In the southwestern United States, where Latinos often traffic in illegal immigrants, apparent Latin American ancestry can become part of a profile.


But the defenders of racial profiling are wrong. Ever since the Black and Latino Caucus of the New Jersey Legislature held a series of hearings, complete with testimony from victims of what they claimed was the New Jersey state police force’s overly aggressive racial profiling, the air has been thick with public denunciations of the practice. In June 1999, at a forum organized by the Justice Department on racial problems in law enforcement, President Clinton condemned racial profiling as a “morally indefensible, deeply corrosive practice.” Vice President Al Gore has promised that, if he is elected president, he will see to it that the first civil rights act of the new century would end racial profiling. His rival for the Democratic nomination, Bill Bradley, has countered that Gore should prepare an executive order and ask the president to sign it now.


Unfortunately, though, many who condemn racial profiling do so without really thinking the issue through. One common complaint is that using race (say, blackness) as one factor in selecting surveillance targets is fundamentally racist. But selectivity of this sort can be defended on nonracist grounds. “There is nothing more painful to me at this stage in my life,” Jesse Jackson said in 1993, “than to walk down the Street and hear footsteps and start to think about robbery and then look around and see somebody white and feel relieved.” Jackson was relieved not because he dislikes black people, but because he estimated that he stood a somewhat greater risk of being robbed by a black person than by a white person. Statistics confirm that African Americans particularly young black men commit a dramatically disproportionate share of street crime in the United States. This is a sociological fact, not a figment of a racist media (or police) imagination. In recent years, victims report blacks as perpetrators of around 25 percent of violent crimes, although blacks constitute only about 12 percent of the nation’s population.


So, if racial profiling isn’t bigoted, and if the empirical claim upon which the practice rests is sound, why is it wrong?


Racial distinctions are and should be different from other lines of social stratification. That is why, since the civil rights revolution of the 1960s, courts have typically ruledbased on the 14th Amendment’s equal protection clause that mere reasonableness is an insufficient justification for officials to discriminate on racial grounds. In such cases, courts have generally insisted on applying “strict scrutiny”, the most intense level of judicial review to government actions. Under this tough standard, the use of race in governmental decision making may be upheld only if it serves a compelling government objective and only if it is “narrowly tailored” to advance that objective.


A disturbing feature of this debate is that many people, including judges, are suggesting that decisions based on racial distinctions do not constitute unlawful racial discrimination as long as race is not the only reason a person was treated objectionably. The court that upheld the DEA agent’s action at the Kansas City airport, for instance, declined to describe it as racially discriminatory and thus evaded strict scrutiny.


But racially discriminatory decisions typically stem from mixed motives. For example, an employer who prefers white candidates to black candidates except for those black candidates with superior experience and test scores is engaging in racial discrimination, even though race is not the only factor he considers (since he selects black superstars). In some cases, race is a marginal factor; in others it is the only factor. The distinction may have a bearing on the moral or logical justification, but taking race into account at all means engaging in discrimination.


Because both law and morality discourage racial discrimination, proponents should persuade the public that racial profiling is justifiable. Instead, they frequently neglect its costs and minimize the extent to which it adds to the resentment blacks feel toward the law enforcement establishment. When O.J. Simpson was acquitted, many recognized the danger of a large sector of Americans feeling cynical and angry toward the system. Such alienation creates witnesses who fail to cooperate with police, citizens who view prosecutors as the enemy, lawyers who disdain the rules they have sworn to uphold, and jurors who yearn to get even with a system that has, in their eyes, consistently mistreated them. Racial profiling helps keep this pool of accumulated rage filled to the brim.


The courts have not been sufficiently mindful of this risk. In rejecting a 1976 constitutional challenge that accused U.S. Border Patrol officers in California of selecting cars for inspection partly on the basis of drivers’ apparent Mexican ancestry, the Supreme Court noted in part that, of the motorists passing the checkpoint, fewer than 1 percent were stopped. It also noted that, of the 820 vehicles inspected during the period in question, roughly 20 percent contained illegal aliens.


Justice William J. Brennan dissented, however, saying the Court did not indicate the ancestral makeup of all the persons the Border Patrol stopped. It is likely that many of the innocent people who were questioned were of apparent Mexican ancestry who then had to prove their obedience to the law just because others of the same ethnic background have broken laws in the past.


The practice of racial profiling undercuts a good idea that needs more support from both society and the law:


Individuals should be judged by public authorities on the basis of their own conduct and not on the basis of racial generalization. Race dependent policing retards the development of bias free thinking; indeed, it encourages the opposite.


What about the fact that in some communities people associated with a given racial group commit a disproportionately large number of crimes? Our commitment to a just social order should prompt us to end racial profiling even if the generalizations on which the technique is based are supported by empirical evidence. This is not as risky as it may sound. There are actually many contexts in which the law properly enjoins us to forswear playing racial odds even when doing so would advance legitimate goals.


For example, public opinion surveys have established that blacks distrust law enforcement more than whites. Thus, it would be rational and not necessarily racist for a prosecutor to use ethnic origin as a factor in excluding black potential jurors. Fortunately, the Supreme Court has outlawed racial discrimination of this sort. And because demographics show that in the United States, whites tend to live longer than blacks, it would be perfectly rational for insurers to charge blacks higher life insurance premiums. Fortunately, the law forbids that, too.


The point here is that racial equality, like all good things in life, costs something. Politicians suggest that all Americans need to do in order to attain racial justice is for swear bigotry. But they must also demand equal treatment before the law even when unequal treatment is defensible in the name of nonracist goals and even when their effort will be costly.


Since abandoning racial profiling would make policing more expensive and perhaps less effective, those of us who oppose it must advocate a responsible alternative. Mine is simply to spend more money on other means of enforcement and then spread the cost on some nonracial basis. One way to do that would be to hire more police officers. Another way would be to subject everyone to closer surveillance. A benefit of the second option would be to acquaint more whites with the burden of police intrusion, which might prompt more of them to insist on limiting police power. As it stands now, the burden is unfairly placed on minorities imposing on Mexican Americans, blacks, and others a special kind of tax for the war against illegal immigration, drugs, and other crimes. The racial element of that tax should be repealed.


I’m not saying that police should never be able to use race as a guideline. If a young white man with blue hair robs me, the police should certainly be able to use a description of the perpetrator’s race. In this situation, though, whiteness is a trait linked to a particular person with respect to a particular incident. It is not a freefloating accusation that hovers over young white men practically all the time which is the predicament young black men currently face. Nor am I saying that race could never be legitimately relied upon as a signal of increased danger. In an extraordinary circumstance in which plausible alternatives appear to be absent, officials might need to resort to racial profiling. This is a far cry from routine profiling that is subjected to little scrutiny.


Now that racial profiling is a hot issue, the prospects for policy change have improved. President Clinton directed federal law enforcement agencies to determine the extent to which their officers focus on individuals on the basis of race. The Customs Service is rethinking its practice of using ethnicity or nationality as a basis for selecting subjects for investigation. The Federal Aviation Administration has been reevaluating its recommended security procedures; it wants the airlines to combat terrorism with computer profiling, which is purportedly less race based than random checks by airport personnel. Unfortunately, though, a minefield of complexity lies beneath these options. Unless we understand the complexities, this opportunity will be wasted.


To protect ourselves against racebased policing requires no real confrontation with the status quo, because hardly anyone defends police surveillance triggered solely by race. Much of the talk about police “targeting” suspects on the basis of race is, in this sense, misguided and harmful. It diverts attention to a side issue. Another danger is the threat of demagoguery through oversimplification. When politicians talk about “racial profiling,” we must insist that they define precisely what they mean. Evasion putting off hard decisions under the guise of needing more information is also a danger.


Even if routine racial profiling is prohibited, the practice will not cease quickly. An officer who makes a given decision partly on a racial basis is unlikely to acknowledge having done so, and supervisors and judges are loath to reject officers’ statements. Nevertheless, it would be helpful for President Clinton to initiate a strict antidiscrimination directive to send a signal to conscientious, lawabiding officers that there are certain criteria they ought not use.


To be sure, creating a norm that can’t be fully enforced isn’t ideal, but it might encourage us all to work toward closing the gap between our laws and the conduct of public authorities. A new rule prohibiting racial profiling might be made to be broken, but it could set a new standard for legitimate government.




Stereotypes Aren’t So Bad Academia weighs in (NRO, 010201)


By John Derbyshire February 1, 2001 10:10 a.m.


One of the most heartening features of the times we live in, if you are of a conservative inclination, is the discoveries now being made in the human and biological sciences. Anthropology, psychology, sociology, and


genetics are all turning up results — good, hard, replicable scientific results — whose broad tendency is to prove that human nature is much more like what conservatives have always said it was like, than it is like what leftists have believed. Every time one of these results escapes from academia into the awareness of the general public, it is greeted with shrieks of horror and obloquy by the leftist establishment (remember The Bell Curve?) and the researchers who uncovered it are tarred, feathered, and run out of the public square with cries of “racist!” ringing in their ears. Those results are piling up mightily behind the dam of orthodoxy, though, and the guardians of that dam are running out of fingers to stick in the cracks. Meanwhile the academics — normally a timid and retiring lot by nature — are getting bolder and bolder in defense of their hard-won truths.


All of which is by way of introducing an astonishing book I have just been reading. The book’s title is Stereotype Accuracy: Toward Appreciating Group Differences. It is a collection of academic papers written by researchers in the field of Social Psychology. The editors are Yueh-Ting Lee, Lee J. Jussim, and Clark R. McCauley, and the book was published by the American Psychological Association in 1995. I found it by chance when hunting around for research materials to support an article on racial profiling I was writing for the print version of this magazine. (That article will appear in next week’s issure of National Review.)


Before you run out to buy the book, I had better say that this is academic stuff, written in academic jargon, with lots of graphs and tables. These are the kind of folk who write “veridicality” when they mean “truth.” Stereotype Accuracy is not bedtime reading, and I personally found some parts of it hard to follow. The main thrust of the book is clear enough, though. These people, all of them full-time researchers at respectable universities, have been carrying out studies of the tendency we all have to stereotype groups of human beings, including our own group. They have been asking very interesting questions, not all of them politically correct. Why do we stereotype? Are stereotypes actually good for anything? Do they blind us to individual qualities? Are they ever true?


Stereotypes, of course, come in both positive and negative varieties, with a single group often being the subject of both simultaneously. Positive: Fat people are jolly, good-looking people are sociable, blacks are athletic, Jews are smart, the English are classy. Negative: Scandinavians are morose, blondes are dumb, blacks are lazy, Jews are pushy, the English are undersexed.


Generally speaking, stereotypes have had a very bad press. They lead, we have been told, to bias, prejudice and discrimination. The editors of Stereotype Accuracy point out that many of the researchers who contributed to the book were first attracted to the field by a desire to fill some obvious gaps. Until recently, most academic work on stereotypes took that hostile point of view, and there was a need to redress the balance. Pure logic suggests that stereotypes fall into four classes (any one of which might, of course, after careful research, turn out to be empty): positive and accurate, positive and inaccurate, negative and accurate, negative and inaccurate. Prior to the work summarized in this book, practically all research had been done on category four, practically none on the other three. If you are a researcher looking for a topic, you naturally zero in on gaps of this kind.


Well, now the research is being done, and the results coming in are unexpected. Far from being a loathsome aberration that ought to be purged from our behavior, it turns out that stereotypes are essential life tools, are accurate much more often than not, and that we do not use them as much as, from cold practical considerations, we should. Modestly, methodically, with batteries of experimental evidence, these researchers are demolishing most of what you thought you knew about stereotypes.


Item: People ascribe a stereotype to everybody in the subject group. “All Germans are efficient”. “All English people have bad teeth.” In fact, these researchers were not able to locate anybody who believes that a stereotype is true of all members of the stereotyped group. Stereotypes are probabilistic tools, and even the most dull-witted human beings seem to know this. People who believe that Mexicans are lazy or that the French don’t wash, understand perfectly well that there are losts of industrious Mexicans and fragrant Frenchmen.


Item: Stereotypes exaggerate group characteristics. No, they don’t. Much more often, the opposite is true. For example, the racial stereotypes that white Americans hold of black Americans are generally accurate; and where they are inaccurate, they always under-estimate a negative characteristic. The percentage of black American families headed by a female, for example, was 21 at the time of one survey (1978): The whites whose stereotypes were being investigated offered estimates of from 8 to 12 percent. It is not true that stereotypes generally exaggerate group differences. As in this example, they are much more likely to downplay them.


Item: Stereotypes blind us to individual characteristics. Nope. It is not the case that when we pass from a situation where we have nothing to go on but a stereotype (cab driver being hailed by young black male) to one where a person’s individuality comes into play (interviewing a black job applicant), our stereotypes blind us to “individuating traits.” On the contrary, researchers have found that the individuating traits are seized on for attention, and stereotypes discarded, with rather more enthusiasm than the accuracy of stereotypes would justify. Teachers’ judgments about their students, for example, rest almost entirely on student differences in performance, hardly at all on race, class or gender stereotypes. This is as one would wish, but not as one would expect if the denigrators of stereotyping were to be believed.


Item: The real function of stereotypes is to bolster our own self-esteem. Wrong again. This is not a factor in most stereotyping. The scientific evidence is that the primary function of stereotypes is what researchers very prettily call “the reality function.” That is, stereotypes are useful tools for dealing with the world. Confronted with a snake or a faun, our immediate behavior is determined by generalized beliefs — stereotypes — about snakes and fauns. Stereotypes are, in fact, merely one aspect of the mind’s ability to make generalizations, without which science and mathematics, not to mention much of everyday life, would be impossible. Researcher Clark R. McCauley:


Standing next to the bus driver, we are more likely to ask about traffic patterns than about the latest foreign film. On the highway, we try to squeeze into the exit lane in front of the man driving a 10-year-old station wagon rather than trying to pull in on the man driving a new Corvette. Looking for the school janitor, we are more likely to approach a young man in overalls than a young woman in overalls. This kind of discrimination on the basis of group differences can go wrong, but most of us probably feel that we are doing ourselves and others a favor when we respond to whatever cues and regularities our social environment affords us.


Ah, the sweet cool breeze of common sense! Wafting to us from academia, of all places!!


With the courtesy and humility that is proper to all honest scientific inquiry, the editors of Stereotype Accuracy have included a dissenting voice, Charles Stangor of the University of Maryland, who throws a wet blanket over some of the findings. (“Arguments that stereotypes are by and large accurate are premature…”) Stangor takes a clear political stand: “As scientists concerned with improving the social condition…” He is the only one in the book to do so, and does not explain why “improving the social condition” is necessarily any business of scientists as scientists — however much it may concern them as citizens. Nor does he offer a definition of “improving the social condition,” the precise interpretation of which is, of course, the source of all political differences. Lenin wanted to “improve the social condition” of Russia via a terroristic dictatorship that expropriated all private property; Adolf Hitler undoubtedly believed that he was “improving the social condition” of Germany by exterminating the Jews. Most of us would disagree with both of them, but neither their views nor our disagreements with them belong in the realm of scientific inquiry. It is highly characteristic of political ideologues that they believe “improving the social condition” can have only one possible meaning — theirs.


I found that the overall effect of reading this book was to make me feel more tenderly towards the human race and angrier towards the Left, which, au fond, hates humanity and seeks to wage war against human nature. (Mao Tse-tung denied flatly that any such thing as “human nature” exists.) Here we are, a rather fragile, smelly, two-legged animal with all the soft tissue on the outside, not very fast and not very strong, dropped into the world with few natural defenses and swamped with a continuous tsunami of impressions coming in to all our five senses all day long, that we somehow have to sort out into useful information. To accomplish this stupendous task, we have developed, or been given, marvellous skills. The most marvellous of all, perhaps, is our skill at generalizing, without which, as Clark McCauley points out (see above), life would be impossible.


Yet just as marvellous, in a way, is the power that even the least intelligent of us seems to have, to drop our generalizations when more useful, more particular information, is available — to form individual judgments that violate our stereotypes. We can all do this, and we all do do it, all the time. What a piece of work is man!


Footnotes (Yeah, yeah, I know: you don’t normally get footnotes in an opinion column. But reading all that academic stuff has put me in a “footnotes” frame of mind. Indulge me.)


(1) Having spoken somewhat slightingly of the style of these authors, I would like to credit one of them — presumably Yueh-Ting Lee, who is a joint author of this particular paper — for reminding me of my second-favorite Confucius quote: Jun jun chen chen fu fu zi zi. Given that jun means “prince,” chen “government minister,” fu “father” and zi “son”, I invite the reader who knows nothing about classical Chinese grammar to try guessing the meaning of this apothegm. (My first favorite Confucius quote, not entirely inapt here, is: Ren bu qi ye — “A man is not a pot.”)


(2) The business of writing “veridicality” for “truth” reminds me of an anecdote about Bertrand Russell. While the great philosopher was living in America, Harvard University asked him to give an address to their philosophy department. Russell wrote up an address and sent it to them for approval. He gave it the title “Words and Things.” Some days later he got a call from the philosophy department. “Prof. Russell, we think your address will do just fine. However, there is a problem with the title. ‘Words and Things’ really won’t do for a lecture on academic philosophy. Do you think you could change that title? Make it a little more…professional?” Russell changed the title to something like “Linguistic Correlates of Epistemological Constructs.” Harvard was happy and the lecture was a success.


Generally speaking, stereotypes have had a very bad press.




What About Negative Stereotypes? The racial-profiling debate continues (NRO, 010220)


William F. Buckley, Jr.


For years and at different levels we get fired up by the fear of creeping social estrangement. The “quest for community,” was one great expression of this fear, and recent misgivings on the matter of bilingual education and the centrifugalization of America are often heard. One division of this social quandary is racial profiling, what it says, and what it does. John Derbyshire, writing in National Review, has brilliantly examined the question and its implications.


We’re reminded that racial profiling went mainstage in a public debate between Vice President Gore and nomination challenger Bill Bradley. The scene, New York’s Apollo Theatre, February 2000. The debate turned to the shooting of innocent African immigrant Amadou Diallo by New York City police. Sen. Bradley said, “I…think it reflects…racial profiling that seeps into the mind of someone so that he sees a wallet in the hand of a white man as a wallet, but a wallet in the hand of a black man as a gun.” He promised that if he were nominated and elected, he would, by executive order, “eliminate racial profiling at the federal level.”


How would one phrase such an executive order? How would it have applied in Chicago, in the matter of LaTanya Haggerty? She was shot dead in June 1999 by a Chicago policewoman who mistook her cell phone for a handgun. The policewoman was, like Ms. Haggerty, black.


There are those who do not wish to linger over the use of racial profiling as a means of maximizing community protection. Prof. Randall Kennedy of Harvard concedes that crime is disproportionately committed by different racial groups. Yes, he says, outlawing racial profiling will reduce the efficiency of police work, and increase the burden on them. So? “Racial equality, like all good things in life, costs something; it does not come for free.” Unhappily, goo-goo political analysis does come for free, and can drive a stake through the heart of purposive thought.


Mr. Derbyshire says that it is true that there are negative stereotypes, but that these are acted upon because they can be correct, and useful. Stereotypes, in sociological research, are held up as “essential life tools.” They introduce “the reality function.” “Confronted with a snake or a fawn, our immediate behavior is determined by generalized beliefs — stereotypes — about snakes and fawns.” Without the capacity to make generalizations, the guidance of common sense would be forfeited. This is acknowledged even by professional guardians of the racial-profiling flame. Jesse Jackson rose above his taboos to say in 1993 that “There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery, then look around and see somebody white and feel relieved.”


Sandra Seegars of the Washington, D.C., Taxicab Commission testified, “Late at night, if I saw young black men dressed in a slovenly way, I wouldn’t pick them up…. And during the day, I’d think twice about it.” This arrant reflection of late-night realities on Washington streets provoked hard questioning. Define slovenly, she was asked. She replied, “A young black guy with his hat on backwards, shirttail hanging down longer than his coat, baggy pants down below his underwear, and unlaced tennis shoes.” Ms. Seegars, who is black, would reply to Prof. Kennedy that yes, racial equality is a good thing, and yes, it costs something, but driving at night in Washington, she’s not willing to pay the cost. Department of Justice figures for 1997 tell us that victims report 60 percent of robberies as having been committed by black persons. In that year, a black American was eight times more likely than a non-black to commit homicide.


The law does and should prohibit discrimination, but applications of that law have to conform with basic realities. “The city of San Jose, California, for example, discovered that, yes, the percentage of blacks being stopped was higher than their representation in the city’s population. Ah, but patrol cars were computer-assigned to high-crime districts, which are mainly inhabited by minorities.”


The Supreme Court is not blind to reasonable distinctions. If race is only one factor in the questioning of suspects, it can be authorized. The critical point is: No one should be detained or questioned where race is the single distinguishing element. “I have been unable to locate any statistics on the point, but I feel sure that elderly black women are stopped by the police much less often than are young white men.”


Among the new Attorney General’s challenges is to insist resolutely that due process be affirmed, without emasculating elementary approaches to crime detection.




Terror Probe Changes Face of Racial Profiling Debate (NRO, 011002)


In the face of changing perspectives on the issue of racial profiling, the U.S. Supreme Court Monday tossed out an appeal from a group of African-Americans who argued they were unfairly singled out by police.


Though the case isn’t related to the Sept. 11 terrorist attacks, the decision is significant in a climate in which some are reconsidering their attitude toward using race as a criterion to find criminals.


“Political correctness I think is gonna’ be put off to the side for a while,” said former FBI agent Jack Trimarco. “And it should be.”


In the case in question, the Supreme Court ruled not to hear the claims of a group of young blacks in Oneonta, N.Y., who say they were rounded up or questioned indiscriminately after a 1992 burglary attack on an elderly woman.


Opponents of racial profiling claim officers violate the Constitution’s guarantee of universal, equal legal protection when they target suspects based on skin color or other racial identifiers.


But following the Sept. 11 attacks, what suddenly seemed outrageous now seems acceptable — at least when it involves people of Middle Eastern origin.


Even some black Americans, who have complained the loudest about racial profiling, are reconsidering their stand. A recent Gallup poll found that Africans-Americans are more likely than other racial and ethnic groups to support profiling and tight airport security checks for Arabs and Arab-Americans since the Sept. 11 disaster.


The poll, reported in Sunday’s Boston Globe, reported that 71 percent of blacks — as opposed to 57 percent of whites — believe Arabs and Arab-Americans should “undergo special, more intensive security checks before boarding airplanes.”


The federal government also has done an about-face.


Earlier this summer, U.S. officials told airlines that conducting extra checks on passengers of Arab origin was a violation of the passengers’ civil rights. Also, Transportation Secretary Norman Mineta ordered a federal investigation into complaints by Arab-Americans that they were being unfairly targeted by security screenings.


But now federal agents are detaining hundreds of Arab-Americans — a practice they call “terrorist profiling.”


Civil rights attorney Steven Cohen says the feds are overreaching in their investigation. “Every mosque is being visited — they are getting membership lists and trailing people,” he said. “People are being intimidated.


“We should step back from this horrible profiling,” he said. “It will stain the American body politic for generations to come.”


Trimarco and others say the FBI is merely doing its job.


“The FBI is simply looking for anyone that might be able to give them information that is critical to the investigation,” Trimarco said.


The tactic, also being called “ethnic profiling” or “country-of-origin profiling” instead of racial profiling, is being defended as appropriate and necessary to the investigation.


“From what we know about these cells, they are extremely closed, secretive, suspicious of people on the outside,” said Heather MacDonald, a fellow at the Manhattan Institute. “I think it would be a grotesque misuse of law enforcement resources to be scrutinizing Southern Baptists, African-Americans or Minnesota Lutherans with the same rigor as we’re looking at Arab-Americans or Arabs.”


The FBI denies scrutinizing every Arab or Muslim in the country, but confirms that it is checking out each incoming call and tip.


Nationwide, the agency has detained or arrested nearly 500 people in its criminal investigation into the attacks, all of them Middle Eastern or Muslim or both.


“The FBI is profiling terrorists,” said Trimarco. “We have a horrific crime that ... was committed by terrorists who may have been Arab or Muslim. If it were committed by another group — for instance, the IRA — the FBI would be out interviewing a lot of people with blue eyes.


“We’re certainly not condemning a race, an ethnic background or a religion for this act,” he said. “However, that is where the information’s going to come from.”


While a dozen states have passed laws designed to monitor or eliminate racial profiling, a recent Fox News poll shows that nearly 70 percent of respondents support the practice as a method of curbing terrorism.


The Justice Department was set to release a comprehensive review of racial profiling this month. Now officials say the report is on hold indefinitely, with resources diverted to the war on terror.




Blacks for Profiling Criminal vs. terrorist profiling (NRO, 020206)


By Robert A. Levy, senior fellow in constitutional studies at the Cato Institute


According to the Gallup Organization, 71 percent of African Americans approve of profiling Arabs to combat terrorism. Yet an overwhelming percentage of African Americans condemn racial profiling in the war against crime. Do those two seemingly contradictory positions suggest an underlying hypocrisy? Not necessarily.


To determine whether African Americans are being hypocritical or just plain sensible, consider these three questions: How important is the objective that the profile seeks to accomplish? How effective is the profile in advancing that objective? What is the potential for abuse?


Let’s begin by examining the goal of the profile, and the benefit if that goal is achieved. The gain from a criminal profile can range from, say, identifying a drug dealer to capturing a serial murderer. The gain from a terrorist profile might reach from halting an airline hijacking to preventing madmen from using a weapon of mass destruction.


Indisputably, the potential benefit of a criminal profile, while certainly not trivial, extends at most to saving a small number of lives. That pales in comparison with the potential benefit of a terrorist profile — a matter of saving thousands or conceivably hundreds of thousands of lives. On those grounds alone, it seems rational to protest the former while applauding the latter.


Next, how effective is a racial or ethnic profile in stopping crime or terrorism? Imagine, for the sake of argument, that all terrorists are Arabs. Only a fool or a masochist would then prohibit Arab ethnicity from being added to a multi-factor profile of suspected terrorists. Indeed, all of the 9/11 terrorists were reportedly of Middle Eastern descent. Yet, self-evidently, all criminals are not African Americans. Thus, other things being equal, the fit of a terrorist profile that included ethnicity would likely be tighter than the fit of a criminal profile that included race.


To be sure, behavior profiling — that is, monitoring conduct rather than immutable characteristics such as race or ethnicity — is less invasive and may be equally effective. In fact, law-enforcement officials who focus on race and ethnicity may ignore more productive profiles based on behavior. Obvious tip-offs include nervousness, conflicting answers to questions, one-way travel arrangements, no luggage for a long trip, lots of cash, no driver’s license, or the use of a rental car. Yet the question remains: Does the addition of race or ethnicity to a behavior-based profile significantly improve the ability of the profile to ferret out criminals or terrorists? On the basis of the events of 9/11, the answer is more likely to be “yes” when profiling terrorists than when profiling ordinary criminals.


Finally, consider the potential for abuse. No doubt, African Americans’ anxiety about criminal profiling stems from our country’s troubled history of racial discrimination. We have no comparable history of bias against Middle Easterners, nor have responsible persons suggested that airport searches, for example, are motivated by traditional bigotry toward Arabs or Muslims. Because the principal objection to profiling is its exploitation at the hands of officials animated by deep-rooted prejudice, on that score, African Americans have more cause for concern than do Middle Easterners.


Moreover, perverse incentives operate to encourage criminal profiling. Those same incentives, which are notorious in the African-American community, do not likewise promote terrorist profiling. First, criminal profiling is inextricably linked to the war on drugs. We spend $37 billion a year trying to stop willing suppliers from selling drugs to willing consumers. In that victimless-crime context, the culprits will not be identified through the use of specific information from what are typically satisfied customers. And without individualized evidence, police are forced to rely on more readily available tools, like statistical profiles.


Second, asset-forfeiture laws give police an enormous incentive to grab drug suspects so they can seize and keep money and property. The Justice Department reports that local police and sheriffs’ departments received nearly $650 million in “cash, goods, and property from drug asset forfeiture programs during fiscal 1997.” Gene Callahan and William Anderson, writing in the August-September 2001 issue of Reason, put it this way: “If the police begin harassing every motorist in a particular locale, support for their activities will soon evaporate. However, if they can identify a minority group… and if they know that members of that group are not politically powerful, then the police can focus on those people in order to enhance departmental revenue.”


Here’s what it all means: It may be entirely logical to condemn criminal profiling of African Americans while advocating terrorist profiling of Middle Easterners. In the terrorist context, the damage that could be prevented is measured in thousands of lives, the profiles are probably more effective for fingering guilty parties, and it is much less likely that abusive practices will be driven by institutionalized racism.




Mind Your Own Business: Privacy fight in California (NRO, 020625)


John Derbyshire


As has often been said, the most interesting arguments in our public life today are not those between Left and Right, but those within the Right. The political Left has had no new ideas since 1968.* Their old ideas have “won” in the sense that they dominate the media, universities, the legal profession, and the public sector, but the price of victory has been the stultification of leftist thought, and a decay of the critical faculties. Nobody on the Left has anything interesting to say. Our best debates now are all within the political Right. One that has currently got my attention concerns Ward Connerly’s “Racial Privacy Initiative.”


Ward Connerly is the Sacramento businessman who is chairman of the American Civil Rights Coalition. He was a prime mover in the 1996 “Proposition 209” campaign to ban racial preferences in California public hiring, education, and contracting. Now he is arguing that since, following the success of that campaign, it is illegal for the state to discriminate by race, there is no reason why the state should continue to gather data on race, or to operate systems of racial classification for any but a small number of very restricted purposes. (You can read the precise wording of the RPI on the website tagged above). He is trying to get this new initiative on the ballot for either this November or next March.


That the Left should be hostile to the RPI is not at all surprising. Racial head counting is now deeply imbedded in America’s public-sector culture, where most Lefties work. What on earth does a “civil-rights lawyer” or an “equal-opportunity” bureaucrat do, without some statistics to prove that “discrimination” is going on? The entire premise of large areas of our social policy is that greedy, pitiless white people will stomp on the faces of helpless minorities the instant the government relaxes its vigilance. To prove the truth of this, you need statistics to show that “disparate impact” has occurred. Then you have your case: for “disparate impact” is caused by that sinister desire, lurking in the hearts of all white folk, to insult, humiliate and impoverish people with dark skin.


Nor is it very surprising that California’s Republican party will not touch the RPI with a barge pole. Republican politicians know that getting themselves associated with any policy of this sort will quickly be manipulated by opposition spinners to reinforce the impression of Republicans as the Unkind Party, the party of people who are forever striving, in sly and underhand ways, to bring back the evils of the past. They are scared witless to be seen out in public with the likes of Ward Connerly; and, from a strictly psephological point of view, they are probably right to feel that way. Millions of not-very-attentive voters choose their candidate not because they favor this policy or that initiative, but from vague feelings that party A is nicer than party B. Colored people have made so much progress! Now this Connerly fellow wants to stop it? That’s not nice! Yes, of course this attitude is idiotic. Millions of voters are idiots. You didn’t know that? The pols know it, and they act accordingly.


What is surprising, and makes for a good debate, is that some conservatives are against RPI. They have two sets of arguments: one respectable and one less so. The more respectable argument is: “Without hard data on race differences in attainment and the progress of racial minorities, the race hucksters — the Sharptons, Jacksons, McKinneys, and Mfumes — will be able to make any claims they like, and nobody will be able to refute them.” The less respectable argument goes something like: “Real progress in dealing with racial issues won’t be possible until the ‘no such thing as race’ dogmas have been decisively refuted. You can’t build sensible policies on falsehoods, and you can’t refute falsehoods without data. If you pretend that every group is equally capable of everything, or even just equally interested in everything, you get into absurdities and counterproductive policies — look at the Title IX fiasco.”


The counterargument, put forward by Connerly himself, is that our governments need to stop taking notice of our race (or, in the case of “Hispanics,” pseudo-race) as decisively as they stopped taking notice of our religion when the First Amendment was ratified. It’s none of their business. True, it’s difficult for our governments to wean themselves off their race fixation, which is as old as the Constitution itself. And we all know that once they have their fingernails dug into any one part of your flesh, it’s awfully hard to pry them away. But if we could once get government people out of the race business, we might have a fair shot at racial peace, as we have had religious peace for 209 years.


Connerly further adds that there is nothing to stop anyone collecting data on racial progress if they want to. His initiative, if approved by the voters, will only forbid the state government from doing so. Objectors respond that, yes, but the hucksters would have a field day with privately gathered data, arguing that those who gathered it were working to an “agenda.” In some cases, of course, this would be true, and it is a fact that government statistics have an authority that private polls and surveys do not. If you believe that we need reliable statistics on racial disparities, the objectors have a point.


For myself, I find Connerly’s First Amendment analogy persuasive. If our legislators are forbidden to make any law respecting an establishment of religion, why should they not be similarly forbidden to make any law respecting the establishment of “protected categories” of citizens defined by other accidents of geography, biology, or upbringing? And if, absent social engineering, different groups end up in different proportions in different walks of life — so what? Different religions have. Nobody minds that, and our governments are constitutionally forbidden to notice it. How many Episcopalian standup comics are there? Who cares?


As a conservative, I should be glad to see our bloated, arrogant, intrusive state and federal governments rolled back from any part of our private lives... But especially this part.


* When Norman Thomas died.




Profiling vs. Profiling vs. Profiling: Let’s retire the verb (NRO, 021115)


The time has come to retire the verb “profiling.” It has reached the point where it confuses more than it clarifies. Since the purpose of language is to communicate, a word that impedes communication rather than advancing it is less than worthless.


The problem is that “profiling” is now used to refer to at least three very different law-enforcement activities. First, it can refer to making a guess about the characteristics of the person who has committed a particular, notorious crime. Second, it can also refer to making a guess about the characteristics of people who are likely to commit nonspecific offenses. And, third, it can refer to the identified characteristics of a person or persons who committed a particular crime.


The last situation is the least problematic, so let’s start there. Suppose that a person is mugged and gives the police the following description of the assailant: a young, black male with a mustache and shaved head, about six-feet tall and weighing around 200 pounds, with a scar on his left cheek, wearing a red windbreaker and gray sweatpants. Now, few people would find it objectionable if, immediately following the crime, the police focused on looking for someone with those characteristics, even those — black, male — that we might oppose weighing in other contexts.


The second situation is where the term became synonymous with bad discrimination. Suppose the police decide that, since young, male African Americans in poor neighborhoods are, statistically speaking, more likely to commit street crimes than old, Asian females in rich neighborhoods, they will target the former more often for traffic stops — and looking over the interior of the car and its occupants in the hopes of seeing evidence of more serious infractions — than the latter. That may well be an efficient practice, at least in the short term, but when government officials single out people for different treatment in part based on race, it is also offensive and raises significant legal problems.


The first situation has gotten the most publicity lately, in the context of the sniper manhunt. There are law-enforcement experts who, for particularly important crimes, will go to the trouble of creating a profile of the sort of person likely to have been the perpetrator. And so, for instance, we were told that the sniper’s profile was of someone with military training, an interest in firearms, an unhappy and frustrated life since leaving the service, not too old, and likely male. All of which turned out to be true. On the other hand, some people — including some profilers — were surprised when an angry black man (with an accomplice), rather than an angry white man, was arrested.


Using the term profiling to describe all three situations is, as I said, confusing. There is a common denominator, all right, namely the fact that the police are looking for a criminal whose precise identity is unknown, but that’s about it. What varies is more important: whether the person involved in a particular crime is being looked for, and what kinds of guesses it makes sense to make, especially when the guesses focus on race and ethnicity.


Worse, while the three categories are distinct, there is also some overlap among them. Consider, for example, our war against al Qaeda. It involves a specific terror network that has committed specific crimes, but it also involves efforts to prevent future crimes from being committed. The network is worldwide, but it has Middle Eastern roots and a particular religious and geopolitical agenda. So, if law-enforcement officials are looking especially hard at individuals who are likely to share those roots, religious fanaticism, and geopolitical outlook, and that means looking at those individuals’ religion and national origin, is that category one profiling, or two, or three?


The answer, in my opinion, is that this fits best into category three, and is no more objectionable than police looking for the person with a scar and a red windbreaker. I would add that in any event sound policy requires, and the law permits, profiling based on ethnicity if the stakes are high enough, as they are in the war on terrorism. But whether or not you agree with all that, it’s not enough to say, “That’s profiling.” That doesn’t mean much anymore.


— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.




Study finds races treated equally (National Post, 030221)


Chief ends months of silence with a barrage of facts


Christie Blatchford


FANTINO REPORT SAYS ALLEGATIONS OF RACIAL PROFILING ARE ‘JUNK SCIENCE’: Chief Julian Fantino discusses the racial profiling issue with community representatives at a Police Services Board meeting yesterday.


TORONTO - Let one thing be clear, off the top -- the chief of the biggest police force in the country has the right, indeed the obligation, to defend the reputation of his officers.


For almost six months, the Toronto force has been subjected to a steady stream of withering criticism in the form of front-page stories and pious commentary, and even the occasional publisher’s “open letter,” in the pages of Canada’s biggest newspaper.


Since last Oct. 19, when the Toronto Star kicked off its lengthy and ongoing series on race profiling with an incendiary front-page headline that read, “Singled out; Star analysis of police crime data shows justice is different for blacks and whites,” hardly a day has gone by without the force receiving another knock. Any story, however remotely connected, that appeared to support the paper’s contention that the force is treating its black citizens unfairly got significant play.


I used to work at the paper, and in my time there, Star writers were always expected to uncover a Toronto connection (“Local man among 3,000 Mexican flood dead”). As a reader, it seems to me that since last fall, that rule appears to have been modified such that no story must appear unrelated to racist policing (“Local man among 3,000 Mexican flood dead was suing police for discrimination”).


For all this time, the force, and the chief, responded to the paper’s allegations as only a large institution and its wounded leader can, which is to say, awkwardly and ineffectively: You cannot win with a newspaper, because always, we have the last word. This is particularly true of the Star, which purports to represent minority concerns better than other publications -- this may even be true -- and has built for itself over the years a network of allies, many of whom predictably have rallied ‘round this latest cause.


Thus, when Chief Julian Fantino denied the force was profiling, he was deemed to be in denial; when he reached out to the black community in various ways, including an ongoing series of evening “town hall” meetings that have seen him travel around the city often to be roundly abused and lectured for his efforts, he was expected to sit there, quietly, and just take it; on the rare occasion he lost his temper and objected, most famously in an exchange with a young black woman, he was taken to task for “not listening.”


So yesterday, at a regular meeting of the police board to which he reports, Chief Fantino, his ammunition mustered at last, presented two independent hired-gun experts, one a high-profile lawyer, the other a learned University of Toronto professor, to do what he could not do, and had not been able to do, himself -- fight back against the Star allegations.


The presentation by the pair, lawyer Alan Gold and Dr. Ed Harvey, was powerful, reasoned and intelligent.


Together, they attacked the statistical analysis done by the paper and which was used as the foundation for its lengthy series.


Mr. Gold provided the flourish: The Star work was “junk science,” so flawed in methodology, he said, that its conclusions were “simply false.”


Dr. Harvey was the sober scientist, describing the paper’s methodology as incomplete, inconsistent and in some regards impossible to replicate -- the time-honoured scientific test of soundness, and the way that researchers test one another.


He said he was given exactly the same raw numbers from the force’s own database as the paper told its readers, in the first stories on the subject, that it had obtained under a freedom of information request and subjected to computer analysis, the results then submitted to, and verified by, an independent consultant the paper only recently publicly identified as York University professor Michael Friendly (for months, the Star wouldn’t name the professor, describing him, rather mysteriously, only as an Ivy League graduate and the director of a statistical consulting firm).


The chief problem with the Star’s method, Dr. Harvey said, was its lack of transparency. The paper said early on that its analysts had “cleaned up the data”; Dr. Harvey said what they did was unclear and that “We spent a lot of time trying to reconcile their data and determine what they had done.” His second major problem with the newspaper’s analysis was that it had improperly used census population data, notoriously unreliable, as the comparison benchmark.


He also said the paper had misused the force database -- designed as an administrative tool to assist police officers -- by using it for research; mixed up offences and offenders, apparently akin to comparing apples and oranges; failed to consider that so-called “out-of-sight” offences, such as failure to wear a seatbelt, might have resulted from random spot checks or an officer’s having noticed a driver weaving through traffic. And, as Mr. Gold pointed out, unlike in the United States, in Ontario and the rest of Canada police are allowed to conduct such random stops.


On and on it went, for two hours-plus, with Dr. Harvey concluding, in the end, that, in fact, the numbers, properly analyzed, show just the opposite of what the Star says they did -- for instance, that for one offence, cocaine possession, which was highlighted by the paper, blacks and whites received almost perfectly equitable treatment, with 74.3% of whites being released at the scene, and 74% of blacks.


The Star, for its part, is sticking by its guns.


Publisher John Honderich last night released a statement saying the paper “will carefully review the matter presented and a more detailed analysis when it is made public.” However, Mr. Honderich said, “I reject totally any assertion that our work was junk science. All our work was reviewed by a renowned expert. We took months to complete it and we remain confident that it is statistically sound.” Then, unable to resist, Mr. Honderich delivered another prim rebuke: “I would have hoped that the police spend more time dealing with the serious issues raised rather than engage in this type of debate.”


That’s the real rub, you see: The police are not generally granted the right to engage, unless, that is, that engagement consists of sitting by silently as they are portrayed as racists, and not lifting a finger to defend themselves.


A similar sentiment was also evident at yesterday’s meeting.


Members of various black and other community groups had been invited to make deputations to the board on race relations issues, and the boardroom was packed to overflow. The Chief’s one-two presentation was not on the formal agenda distributed in advance of the meeting -- even the board members had not seen the Gold/Harvey report beforehand -- and clearly came as an unwelcome surprise to many of the deputants, who, as the proceedings dragged on, occasionally groaned or sighed wearily.


My hunch is that the Chief might have been better served had the report been widely circulated beforehand, and deputants told what was coming before they would get their chance at the microphone. But that, as lawyer Julian Falconer, there representing the Urban Alliance on Race Relations, said afterwards, is a question of process.


The fundamental question, though, remains: Are the police, and Chief Fantino in particular, entitled to defend themselves? The answer is a resounding yes, as Mr. Falconer, who is one of the fairest men I know, later agreed.


This is not merely a spitting match between two large and powerful institutions, or their hired experts. The numbers matter. The analyses matter. As board member Alan Heisey said yesterday, “It does matter ... who’s right.” And, at the moment, who’s right is very much at issue.




Evidence Outed: Trooper pays for profiling (NRO, 030923)


While a federal appellate court was attempting to stymie California’s gubernatorial recall election last week, a Massachusetts judge was advancing the cause of judicial activism in his own way. Worcester superior-court judge John McCann threw out evidence that state troopers had gathered against Andres Lora — two pounds of cocaine in his car trunk (street value $20,000) — along with Lora’s confession that he had purchased it in the Bronx to sell it in Worcester. The reason? The judge found that Brendan Shugrue, the trooper who stopped the car Lora was riding in, had displayed a racially discriminatory pattern in his previous traffic stops. That is, Shugrue had searched the cars of 5.1 percent of the white motorists he had ticketed for moving violations during the previous six months in Auburn (where the stop occurred) and Worcester (the adjacent city), but 33.2 percent of the ticketed cars driven by “minorities.” In other words, the trooper was guilty of “racial profiling.”


As legal observers interviewed by the Boston Globe noted, it is extremely rare for a judge to exclude evidence in a criminal case solely because of a statistical pattern suggesting racial bias. Not surprisingly, the legal director for the Massachusetts ACLU hailed Judge McCann’s “willingness to enforce the Constitutional guarantee of equal protection.” And Lora’s defense attorney, while acknowledging that the decision might be hard for some people to stomach, remarked that “the Equal Protection Clause [of the U.S. Constitution] does not focus on what was found, or how much was found, but on the process in which it was found.”


Actually, contrary to these spokesmen, the Equal Protection Clause of the 14th Amendment says nothing whatsoever about racial profiling, or even about other aspects of the collection of evidence against alleged felons. It simply decrees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Needless to say, the sphere of the “protection” offered by that clause is supposed to apply only to legal activities, not illegal ones. In this case, the troopers who arrested Lora were acting to protect Worcester citizens from the scourge of illegal drugs. Nonetheless, in Judge McCann’s view, the mere fact that a Latino driver was more likely to have his car searched following a traffic violation than a “white” one meant that all Latinos in the Worcester area were being deprived of their proper protection — and the proper remedy was to let an arrested drug dealer go free.


To put Judge McCann’s decision in perspective, it should be mentioned that the drug trade in Worcester and its environs is dominated by Latino immigrants. (Lora is from the Dominican Republic.) And what precipitated the search was that Trooper Shugrue, after observing Lora opening the car door as if he were about to leave while Shugrue was ticketing the driver, shined a flashlight into the car and observed a plastic bag on the floor containing what looked like cocaine. Thus Shugrue’s call for a backup trooper to join him in searching the car would hardly appear to be unreasonable or motivated by bias.


Judge McCann’s ruling means that Massachusetts police officers should simply ignore their instincts (based on knowledge of the demographics of the local drug trade, as well as observation of the behavior of those they have stopped) in choosing whose cars to search. Applied at the national level, it would mean that any Muslim Arab immigrant found trying to board an airplane with an explosive device would be entitled to have the evidence excluded from courtroom proceedings if he could show that airport security officers tended to search the bags of Muslim Arabs more than other passengers!


The exclusionary rule has been described as a judicial device that spares the guilty while protecting the innocent. (Had Lora not been carrying cocaine, the worst he would have suffered was the temporary inconvenience of a car search.) Far from meriting applause, Judge McCann deserves a refresher course on the Constitution that might enlighten him on the sorts of rights it was enacted to secure. (Those rights of course include the rights of the vast, law-abiding majority of Worcester Latinos, who are more likely than others to have their neighborhoods rendered unstable and their families’ lives ruined by the scourge of illegal drugs and attendant gang violence.)


— David Lewis Schaefer is a professor of political science at Holy Cross College.




Unreasonable Searches: Policing without profiling makes no sense (National Review, 050829)


Year four of the War on Terror is coming to a close with the bombing of London’s mass-transit system by Islamist terrorists. Year three saw the Islamists bomb Madrid’s railway, as well as synagogues, businesses, and the British consulate in Istanbul. In year two, they struck a resort in Kenya, nightclubs in Bali, and Western citizens in Casablanca and Riyadh. And in year one, even as we waged a massive counterattack in the aftermath of 9/11, they managed to savage a synagogue in Tunisia.


There is a pattern here — but the U.S. government seems to be incapable of detecting it. We have met the enemy, and it is militant Islam. Yet we refuse to acknowledge that fact, pretending that the enemy is “terror” — a method of attack — rather than the terrorists who employ that method. The latest expression of our refusal to identify the enemy is our ongoing debate over “racial profiling.” One cannot listen to this debate without wondering whether three decades of political correctness have undermined not only the common sense necessary for survival, but our will to survival itself.


I was on a panel some months ago with a top official from the Department of Homeland Security. After reeling off three now-infamous but manifestly non-Arabic names — Richard Reid (the “Shoe Bomber”), John Walker Lindh (the “American Taliban”), and Jose Padilla (allegedly a would-be “Dirty Bomber”) — the official offered to that room full of idealistic law students the cheery lesson our government has drawn: You can’t construct a terrorist profile because the monsters come in all colors, shapes, and sizes. As I listened to this absurdity, I couldn’t help but think of Muggsy Bogues, the five-foot-three-inch dynamo of a point guard who lit up pro-basketball arenas for years. I hope that if some exigency ever impels the Transportation Safety Administration to put together an NBA team, the agency will not think “Muggsy” and scour the land for Lilliputians.


Terrorists — particularly those who are likely to attack — have a profile. They are Muslim males, overwhelmingly young adults of Middle Eastern and North African descent. That doesn’t mean everyone who falls into that profile is a terrorist. Nor does it mean that every terrorist will fit the profile — you will get the occasional Reid, Lindh, or Padilla. But so what? A profile is not a judgment of guilt. It is not even an accusation of guilt. It is an investigative tool. It enables law enforcement to organize suspicions and husband resources rationally, in a manner related to a known threat. It is not foolproof, but no one who utilizes it is under any such misimpression. Its point is not to cast aspersions but to improve the odds of thwarting an attack the fallout of which could be catastrophic. It is essential in any strategy aimed at preventing a strike rather than prosecuting the guilty after the victims have been slaughtered.


Profiling is not congenial to our tender postmodern sensibilities. Nonetheless, it is legally inoffensive, at least under federal law. To be sure, the Fourteenth Amendment guarantees all persons equal protection. Yet this has never meant anything so absurd as that government must in all circumstances regard everyone as the same. The state routinely, and quite properly, makes common-sense distinctions: A seven-foot-tall naval officer may be ruled ineligible for duty in the tight confines of a submarine; women are excluded from combat missions; members of both sexes may be barred from employment as firemen or police officers if unable to meet physical-strength criteria; and so on.


Moreover, if the state interest at issue is compelling enough, even suspect distinctions such as those based on race or ethnicity are permissible. The Supreme Court has recently held that states may use race and ethnicity as grounds for denying qualified Americans admission to universities — and for no better reason than to achieve a critical mass of student diversity. How much more compelling is our interest in saving lives?


The Supreme Court has long recognized the security of the governed as the highest imperative of government. The Constitution, as Justice Robert Jackson famously observed, is not a suicide pact. If a profound threat stems from a particular group, the government may take that fact into account when deciding how to marshal its resources. The government has no less than a duty to do so, and until recently this duty was carried out without much controversy.


It has, for example, been established federal law since the Alien Enemies Act of 1798 that, in a time of declared war, the United States may imprison or deport nationals of enemy nations. (What was excessive about internment camps during the Second World War was that they included American citizens of Japanese descent; there was nothing objectionable in principle about holding Japanese, German, or Italian nationals.) In the War on Terror, the enemy is a global network rather than a nation — but that complication hardly extinguishes the underlying principle: Those whose allegiance may lie with the enemy must be subject to greater scrutiny.


This line of thinking is not exclusive to wartime considerations. The mafia has historically been a syndicate composed of males of Italian descent. In the prosecutions of the 1980s and 1990s that shattered the mob, the Justice Department did not cast its net widely enough to snare octogenarian Guatemalan grannies; it made Italian heritage part of the profile. Likewise, the Westies were a Hell’s Kitchen–based Irish mob; in dismantling it, the government did not target, well, Muggsy Bogues. Ditto for Chinese tongs, Colombian drug cartels, Russian organized crime, Nigerian scammers, and the entire gorgeous mosaic of crime.


Criminal conspiracies, like much concerted activity (including much that is socially beneficial), tend to be ethnic and cultural. Government was never expected to ignore that reality when the worst consequence of misdirected attention might have been a gang murder or a kilo of cocaine slipping into the stream of narcotics traffic. Why would anyone think the blinders should go on when the consequence could be mass homicide — tens or hundreds of thousands of deaths — in a WMD attack?


Our chariness about profiling is best seen in post-9/11 airport procedures and, following the London tube bombings, in New York City’s subway searches. As to the former, one sees its absurdity by imagining an international network of old ladies intent on carrying out suicide strikes. Does anyone think the TSA would have the nerve to subject young Muslims to aggressive secondary screening at the nation’s airports? Yet, in our current war against militant Muslims, no one — not children, not aged invalids — is immune from overwrought intrusion, lest we be thought inhospitable to the genus exclusively within which lies the barbaric species aiming to destroy us.


The NYPD’s subway searches, meanwhile, are ludicrously benign. To forfend claims of profiling, the cops are reacting to militant Islam’s atrocities by randomly stopping approximately every tenth person carrying a bag. (Query: Why is it kosher to discriminate against bag-carriers? Don’t they have a lobby?) Further underscoring that this is a gesture, not a strategy, the police announce their presence at a particular station ahead of time; real bombers need only tote their bags a few blocks to the next stop. And no one who has the misfortune of being stopped is forced to undergo a search — if you object to opening your knapsack, the police will leave you alone, although you will not be permitted to board a train. No profiling, no searches, and no effectiveness.


Yet the NYPD is still being sued by the New York Civil Liberties Union. NYCLU’s complaint, after mouthing that “concerns about terrorism of course justify — indeed, require — aggressive police tactics,” argues that the searches violate the Constitution because they lack individualized suspicion. It then argues that they could easily lead to such suspicion, and to profiling — which would, conveniently, also violate the Constitution.


This attempt to have it both ways, consistency be damned, is lunacy run amok. In fact, not focusing on those who pose a danger is flagrantly to violate civil rights: specifically, the right of the vast majority of Americans to be free from unreasonable searches.


Which is to say nothing of the right to life of everyone we are failing to protect. Until we stop pretending not to see what the terrorists who are attacking us look like, we may as well give them an engraved invitation to strike again.


Mr. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies, and a contributor to National Review Online.




Ethnic Profiling (Free Congress Foundation, 050822)


One of the major points of controversy in the present war on terrorism, which has now become fully international, is a metaphor used for the recognition of individuals involved in terrorist acts.


That point of controversy is a term called “ethnic profiling.”


The usual suspects have provided a constant drumbeat of opposition to this method of singling out the perpetrators of the terrorist acts against the innocent people of the world. Not surprisingly, within this corps is a chief bugler, the American Civil Liberties Union. The ACLU is sounding a clarion call for the Far Left to organize against the best interests of the American people.


Every possible method, scheme or device of interruption and confusion is being blasted at the security measures planned to protect U.S. citizens.


One of the principal objections is that the terrorist acts of Oklahoma City, the abortion clinic murders, the Atlanta Olympics bombing and a Taliban insurgent all involved Anglo-Christian whites. The reasoning of the Far Left objectors is that the profiling of specific ethnic groups related to Muslims will overlook all other possible suspects, therefore defeating the purpose of the entire program.


The fallacy of this approach is that the consensus of improbability reveals that nearly all other identifiable ethnic groups, in reality, fade into the distance.


Certain Muslim groups have declared their absolute hatred of Anglo-Christian ethnic groups, which by the way, are easily identifiable. These same Muslim groups have called for the murder of all Anglo-Christians, either individually or en-masse.


Side-by-side photos of all those Muslims involved in terrorist acts have a like ethnic appearance.


It is politically stupid for Americans who are so easily identified on an ethnic basis not to use ethnic profiling against our sworn enemies in the interest of our own protection.


I know this is a silly example but no less emphatic. As a child I recall a saying, “All Chinese look alike” to which the other person said, “but to the Chinese all Americans look alike.”


Ethnic profiling works. If ethnic profiling is but one viable tool in the war against inter- national terrorism it must be used to the utmost. To do otherwise is to expose Americans and other innocent peoples of the world to the horrible deaths imposed by our sworn terrorist enemies.


E. Ralph Hostetter, a prominent businessman and agricultural publisher, also is a national and local award-winning columnist.




Reasonable and Realistic Profiling– Willie Sutton: Where Are You? (Free Congress Foundation, 050829)


Many organizations and individuals, with varied (and sometimes highly questionable) motives, vociferously oppose any measure of profiling in law enforcement and in defense against terror.


The rather legendary, and quotable, bank robber, Willie Sutton, when asked why he repeatedly robbed banks, supposedly answered: “Because that’s where the money is!”


Why for years have many metropolitan police profiled neighborhoods to intercept, and make arrests for, such crimes as peddling of narcotics, pickpocketing, prostitution (just alliteratively to name three)? For the obvious application of Willie Sutton-type logic: Because that’s where the crimes are.


Those who criticize such selective law enforcement almost inevitably charge racial or ethnic bias. In so doing, they blissfully or maliciously, as the case may be, overlook the realities, among the more obvious, that police cannot be ubiquitous – nor would we want them to be, that police must concentrate upon protecting citizens where criminals are, that there are very real budgetary limitations as to the size of police forces.


Amid the plethora of airline-passenger complaints about delay and inconvenience upon passing through security at terminals, too many passengers bemoan, criticize, gripe inconsistently. On the one hand, they do not want profiling because that is politically incorrect; on the other hand, they fit no suspicious profile so they object to the delay and inconvenience of somewhat broadly applied security checks upon passengers.


Police in many large urban areas know the neighborhoods in which crime is most prevalent. How much we know about the newer crime of terrorism remains to be seen. Some history may be more than coincidence.


What do all the criminals in the following episodes have in common?



What is the profile of each terrorist upon these eleven occasions? Answer: Muslim men, mostly in their late teens, twenties and thirties.


These tragic historical examples obviously do not implicate all, or even most, such men. However, elementary reasoning compels the conclusion that a necessary means to reduce terrorism is to profile, just as local police have proven time and again the efficacy of neighborhood profiling.


The wisdom of Willie Sutton: Where are you when we need you in a worthy cause?


Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation.




Reporting While Wrong: The New York Times peddles more ‘driving while black’ malarkey (National Review Online, 050926)


The New York Times’s bad faith regarding the police has reached a new low. On August 24, a front-page article claimed that the Justice Department had tried to suppress damning evidence of racial profiling by the nation’s police forces. In fact, it is the Times that is suppressing evidence.


For years, activists have argued that some drivers face a heightened risk of being stopped by bigoted cops. David Harris, a University of Toledo law professor and ubiquitous police critic, provided a classic statement of the “Driving While Black” conceit in 1999: “Anyone who is African-American is automatically suspect during every drive to work, the store, or a friend’s house.” Owing to this “automatic suspicion,” Harris posited in his 2002 book, Profiles in Injustice, “pretextual stops will be used against African-Americans and Hispanics . . . out of proportion to their numbers in the driving population.”


The “Driving While Black” belief is pervasive, powerful, and false. According to a survey of 80,000 civilians conducted by the Bureau of Justice Statistics (an arm of the Justice Department) in 2002, an identical proportion of white, black, and Hispanic drivers — 9 percent — were stopped by the police in the previous year. And the stop rate for blacks was lower during the day, when officers can more readily determine a driver’s race, than at night. These results demolish the claim that minorities are disproportionately subject to “pretextual stops.”


Clearly, these findings should be news of a high order — so that must be why the Times buried them in paragraph 11 of its front-page story (and omitted the day-night disparity entirely). But not only did the Times conceal the study’s import, it also had the temerity to spin the survey as confirming the racial-profiling myth. Indeed, the BJS study will “add grist to the debate over using racial and ethnic data in law enforcement,” the newspaper asserted, because it provided evidence of “the aggressive police treatment of black and Hispanic drivers.”


What is this evidence for racist policing, in the paper’s view? The Times bases its charge on two findings from the survey: According to driver self-reports, blacks and Hispanics were more likely to have their persons or cars searched than white drivers, and were more likely to be subjected to the threat or use of force by the officer who stopped them. The survey defines force as pushing, grabbing, or hitting; a typical force incident, characterized by the survey respondent as “excessive,” consisted of an officer grabbing the respondent by the arm as he was fleeing the scene and pushing him against his car. Specifically, black drivers said that they or their cars were searched 10.2 percent of the time following a stop, Hispanic drivers 11.4 percent of the time, and white drivers 3.5 percent of the time. As for police threats or use of force, 2.4 percent of Hispanic drivers, 2.7 percent of black drivers, and 0.8 percent of white drivers claimed that force had been threatened or used against them.


None of these findings establishes prejudicial treatment of minorities. The Times, for instance, does not reveal that blacks and Hispanics were far more likely to be arrested following a stop: Blacks were 11 percent of all stopped drivers, but 24 percent of all arrested drivers; Hispanics, 9.5 percent of all stopped drivers, but 18.4 percent of all arrested drivers; and whites, 76.5 percent of all stopped drivers, but 58 percent of arrested drivers. The higher black and Hispanic arrest rates undoubtedly result from their higher crime rates. The national black murder rate, for example, is seven times higher than that of all other races combined, and the black robbery rate eight times higher. Though the FBI does not keep national crime data on Hispanics, local police statistics usually put the Hispanic crime rate between the black and white crime rates. These differential crime rates mean that when the police run a computer search on black and Hispanic drivers following a stop, they are far more likely to turn up outstanding arrest warrants than for white drivers.


These higher arrest rates in turn naturally result in higher search rates: Officers routinely search civilians incident to an arrest. Moreover, the higher crime rates among blacks and Hispanics mean a greater likelihood that evidence of a crime, such as weapons or drugs, may be in plain view, thereby triggering an arrest and a search.


The higher incidence of police threats or use of force against blacks and Hispanics — assuming the self-reports are accurate — is also more likely to result from driver conduct than from police bias. Criminology studies have long found that the greatest predictor of police behavior is civilian behavior. Threaten or challenge an officer and you are likely to be challenged back. The 2002 BJS survey concluded that persons who provoked the police were significantly more likely to experience the threat or use of force by the officer than persons who did not. Thus, 24 percent of persons involved in a police force incident admitted to cursing at, insulting, or threatening the officer. The number of people who actually engaged in such behavior is probably higher still.


Speculatively speaking, it is likely that a greater percentage of blacks and Hispanics challenged or threatened a police officer than did whites. Why? Because for the last decade and a half, blacks and Hispanics have been fed a steady diet of police-racism stories. They have been told again and again that if an officer stops them, it is because of their race, not their conduct. Police officers have come to expect that the first words out of a black driver’s mouth following a traffic stop will be, “You only stopped me because I’m black.” The chance that such an attitude will escalate into more hostile behavior is much greater than zero. In addition, the differential crime rates mean that a higher proportion of black and Hispanic drivers will have a crime in their past that could lead them to resist the officer making the stop.


The BJS authors explicitly disavowed the possibility of using the survey data to conclude that driver race, rather than conduct, resulted in different search or force rates. The Times, however, shows no such reluctance. After belatedly acknowledging the identical stop rates among different racial and ethnic groups, the paper hastens to add that “what happened once the police made a stop differed markedly depending on race and ethnicity.” The Times then goes on to posit a Bush administration cover-up of these allegedly compromising findings. According to the Times’s narrative, political appointees in the Justice Department demoted the Bureau of Justice Statistics director, Lawrence Greenfeld, after he refused to delete references to the differential search and force rates from a press release announcing the 2002 survey. And in a further manifestation of political meddling, per the paper, the Justice Department opted not to issue the contested press release at all, but simply posted the report online — as it has done for nearly 70 percent of the reports released in 2004 and 2005. That was another detail not disclosed in the Times’s story.


So what? A press release that focused on the search and arrest rates would be seriously misleading. Yet the Times’s fake scoop produced the usual reaction: eager mimicry. Within 24 hours, news outlets ranging from National Public Radio to the St. Petersburg Times had reproduced the story. One career cop-basher, Rep. John Conyers of Michigan, called for a congressional investigation into the alleged “cover-up.” And the NAACP claimed that the study confirmed the “truth about racial profiling.”


The notion that the police target blacks and Hispanics because of their skin color has damaged urban life. Thanks to racial-data-collection mandates, every officer knows that if he has “too many” interactions with minority citizens — including responding to crime calls or preventing a mugging — he could face a bias charge. Some officers will decide that it’s wiser for their careers not to fight crime aggressively, leaving law-abiding inner-city residents at the mercy of thugs. The drumbeat against the cops increases the hostility against them, poisoning the trust needed for the most effective police work. The New York Times’s endless crusade against phantom police racism ensures that the poorest neighborhoods will continue to be held back by fear and violence.


Heather Mac Donald is a contributing editor to the Manhattan Institute’s City Journal.