An Argument Against Discrimination And Racial Profiling In Law Enforcement

Conversations have only recently added the term “racial profiling” to discussions about discrimination.   It is fairly common knowledge that the definition of racial profiling is “the practice by the police of thinking people of a particular race or color will behave in a particular way, especially that they will commit crimes.”[1] One tends to think about the start of racial profiling as having occurred after the 9/11 terrorist attack; but to understand the full scope of racial profiling one must understand the practice spans back to the 1950s and 1960s.  As stated by the American Civil Liberties Union (ACLU), “Any definition of racial profiling must include, in addition to racially or ethnically discriminatory acts, discriminatory omissions on the part of law enforcement as well. For example, during the eras of lynching in the South in the 19th and early 20th centuries and the civil rights movement in the 1950’s and 1960s, southern sheriffs sat idly by while racists like the Ku Klux Klan terrorized African Americans. At times, the sheriffs would even release black suspects to the lynch mobs.”[2]

Racial profiling has been a part of law enforcement since at least the 1960s in the southern part of the United States.  In the mid-19th century, racial profiling was obvious in its nefariousness. There was no justification other than hate.  An increase in crime and other law enforcement data mining has made objection to racial profiling more complex. Currently, the most obvious form of racial profiling can be found in search and seizure practices in both the United States and England.  The Fourth and Fourteenth Amendments to the United States

Constitution and England’s Police and Criminal Evidence Act (1984) cover a citizen’s rights during search and seizure.  Regarding racial profiling and terrorism, one must not overlook the Terrorism Act of 2000 in England nor the Patriot Act in the United States.  Both are results of terror attacks in the perspective countries; and both have resulted in increased power of law enforcement. In the post-9/11 period, policing began to demonstrate greater racial profiling, which included the deportation of Arab and Muslim immigrants. This led to many current immigration laws that enhance or encourage racial profiling.[3]  Reid’s article in The Journal of Criminal Law discusses this increase and provides statistics that show that while “stop and searches” among white people increased by 17% in 2004. Black and Asian people rose from 38% and 36%, respectively.  Yet, there is no credible evidence and rarely has been persons from ethnic minorities commit any more crime than persons from majority ethnic groups. Reid also shows that between 2001 and 2002, there were 21,577 searches and only 18 terrorism-related arrests. [4]

The above numbers show what appears to be abuse of the system.  Any form of data analysis which leads to racial profiling and violations of civil liberties must be reviewed and ultimately changed.    Using statistical models to show effectiveness, Press puts forth the idea that uniform random sampling is the most effective at catching terrorists.  While strong profiling leads to racial profiling, “uniform sampling, without the use of profiling, is surprisingly good. It is robust against false assumptions, it is a deterrent, it is easy to implement, it is about as effective as any real‐life system can be – and it is devoid of moral and political hazard.”5   A system devoid of moral and political hazard is the goal of all law enforcement; however, laws are not always followed and the courts must get involved.

Court cases addressing the topic of discrimination and racial profiling typically are based on the Fourth and Fourteenth Amendments.  As such, the Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[5] The Fourteenth Amendment states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[6]  One cannot be searched without probable cause and said person have the right to be treated to all others as an equal.  For a Fourth Amendment case to succeed, it must show the abuse of the Fourth

Amendment not the exceptions.  The burden in a Fourth Amendment case falls to the government to show that a search and seizure was reasonable based on experience and law.  This would make a claim under the Fourth Amendment difficult to prove on the part of the accuser. Unless the defendant can prove otherwise, there is a better chance of proving discrimination and racial profiling under the Fourteenth Amendment.  As Supreme Court Justice Anthony Scalia stated, “…the Constitution prohibits selective enforcement of the law based on considerations, such as race.  But the constitutional basis for objecting to intentionally discriminatory applications of the laws is the Equal Protections Clause, not the Fourth Amendment.”[7]  In Fourteenth Amendment cases, the burden falls on the defendant to prove they are being targeting and prosecuted when other races are not.  Data collection and statistical analysis is an important tool when winning these discrimination and racial profiling cases.

Data is not infallible, nor are humans. There is something inherently wrong with the system when more than twenty-thousand stops are made and there are less than twenty arrests.  Racial profiling does not help in law enforcement and only causes dissent between communities and law enforcement officials, especially when the law enforcement agencies look the other way when crime is being committed by affluent white males, as evidenced by the recent Jeffery Epstein case.  There needs to be better safeguards in place to not just protect society from terrorists, but also protect individual rights.

 

Works Cited

Press, William H. “To catch a terrorist: can ethnic profiling work?” Significance 7.4 (2010): 164167. 11 8 2019. <https://rss.onlinelibrary.wiley.com/doi/full/10.1111/j.17409713.2010.00452.x>.

Racial Profiling: Definition. n.d. 11 8 2019. <https://www.aclu.org/racial-profiling-definition>.

Reid, Kiron. “Race Issues and Stop and Search: Looking behind the Statistics:.” Journal of Criminal Law 73.2 (2009): 165-183. 11 8 2019.

<https://journals.sagepub.com/doi/abs/10.1350/jcla.2009.73.2.562>.

Schlosser, Michael D. “Racial Attitudes of Police Recruits in the United States Midwest Police Academy: A Quantitative Examination.” International Journal of Criminal Justice Sciences 8.2 (2013): 215. 11 8 2019.

<http://sascv.org/ijcjs/pdfs/schlosserijcjs2013vol8issue2.pdf>.

Staff, L. I. I. Fourteenth Amendment. n.d. 12 8 2019.

<https://www.law.cornell.edu/constitution/amendmentxiv>.

Strasser, Mr. Ryan. Fourth Amendment. n.d. 12 8 2019.

<https://www.law.cornell.edu/wex/fourth_amendment>.

Schott, Richard G. “Role of Race in Law Enforcement: Racial Profiling or Legitimate Use?” FBI

Law Enforcement Bulletin Volume:70 Issue:11 Dated:November 2001 Pages:24-32

[1] (Racial Profiling: Definition)

[2] “Racial Profiling: Definition”. American Civil Liberties Union. Retrieved 2019-08-11.

[3] “Racial Attitudes of Police Recruits in the United States Midwest Police Academy: A Quantitative Examination”. International Journal of Criminal Justice Sciences. Retrieved 2019-08-11

[4] “Race Issues and Stop and Search: Looking behind the Statistics”. The Journal of Criminal Law. Accessed 2019-08-11 5 “To catch a terrorist: can ethnic profiling work?” Significance. Accessed 2019-08-11

[5] “Fourth Amendment” Cornell Law. Retrieved 2019-08-12

[6] “Amendment XIV” Cornell Law. Retrieved 2019-08-12

[7] “Role of Race in Law Enforcement: Racial Profiling or Legitimate Use?” FBI Law Enforcement Bulletin. Accessed 08-12-09

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