A Collaboration with the University of Pittsburgh

PITTSBURGH: Racial Profiling as Law and Policy

Max Parmelee, Pitt Law '12, discusses the ways in which his views of racial profiling changed after attending a lecture by Pitt Law Professor David Harris and reflecting on the use of profiling by federal and local authorities...

Earlier this year, Jordan Miles was walking through Pittsburgh's Homewood neighborhood when three plainclothes police officers approached him. According to Miles, a young African-American student, the officers did not identify themselves, attacked him without cause, and arrested him, inflicting serious injuries in the process. He says that the Pittsburgh police officers assaulted him based largely on the color of his skin - a textbook example, he claims, of racial profiling. The officers, on the other hand, maintain that they had probable cause to stop Miles and search him, and that it was Miles' own resistance which led to his arrest and injuries. The encounter drew intense media scrutiny and public outcry, and City Councilor Rev. Ricky Burgess has proposed reforms which would require the installation of video cameras in all city police cars, the placement of all officers being investigated for excessive use of force on paid leave, and the creation of a task force focused on improving Police Bureau practices. The Pittsburgh City Council has also scheduled a public hearing on April 8, 2010, that will critically examine alleged racial profiling by the Pittsburgh Bureau of Police.

I will admit that, as a member of the white, 18-30-year-old male demographic group, my personal experience with racial profiling is not what one could call "extensive." Despite this lack of first-hand perspective, I thought I still had a good idea of what to expect when I attended Professor David Harris' presentation on the subject earlier this year. I have always been uncomfortable with efforts to predict crime by selecting people for investigation and pat-frisk searches based largely on their facial features and the color of their skin. To me, it seems at odds with several of our basic rights, such as our right to be safe from unreasonable searches and seizures under the Fourth Amendment, and our right to be treated equally under the Fourteenth Amendment. According to Amnesty International, "26 states have no law explicitly prohibiting racial profiling" despite rulings such as Batson v. Kentucky, in which the US Supreme Court ruled that allowing prosecutors to exclude jurors based on their race alone was unconstitutional.

However, it had always seemed as if the process of racial profiling itself was, from a law enforcement perspective, logically sound, and I accepted that it was a necessary evil in a dangerous world. With national attention focused on preventing terrorist attacks over the past few years, it was not surprising to me that racial profiling had become something more than a crime-fighting technique relegated solely to local law enforcement. I was forced to question my assumptions when I attended Professor Harris' lecture, which convincingly exposed racial profiling as a practice which is not only ineffective and unnecessary, but also distinctly counterproductive to the goal of protecting our society from domestic and foreign criminals alike.

Racial profiling, Harris asserts, does not mean that skin color is the sole basis for which a person is stopped or arrested. Rather, Harris defines racial profiling as: "[T]he use of racial or ethnic appearance as one factor, among others, to decide which persons should be stopped, questioned, and/or searched." Police departments, officers, and associations across the country were at first hesitant to even admit the existence of the practice, said Harris, but later defended it as a justified approach to a difficult problem. The main problem with attempting to critically assess a tactic that was for years disavowed by its practitioners is the lack of records or data.

It was not until the late 1990s that the first studies into racial profiling by police and law enforcement agencies were undertaken. The first study to receive national recognition was conducted by the New York Attorney General's Office in response to public outcry over the killing of Amadou Diallo by New York Police Department (NYPD) officers on February 4, 1999. The study examined data provided by the NYPD as a result of department policy requiring officers to record information on all "stop and frisk" encounters. These "Terry stops" get their name from Terry v. Ohio, in which the US Supreme Court held that police have the right to detain someone in public if an officer reasonably suspects that that person is committing a crime. After taking office as mayor of New York in 1994, Rudy Giuliani attempted to tackle the city's rising crime rate by hiring former Boston and Los Angeles police commissioner William Bratton. Bratton and Giuliani made Terry stops a key tactic in their anti-crime strategy in areas with greater minority populations. The NYPD provided data to the New York Attorney General's office for purposes of the study covering approximately 175,000 stop-and-frisk encounters over a period of about 15 months. The data was arranged by the percentage of whites, Latinos, and African-Americans living in New York, the percentage of whites, Latinos, and African-Americans who were stopped and frisked, and the "hit rates," or how often officers found contraband during the search for each given category. While African-Americans made up only about one quarter of the city's population, just over half of the individuals frisked were African-American. A similar pattern emerged with respect to Latino residents. The NYPD hit rates did not justify the disproportionate focus on minorities, and were actually highest for the white population. In fact, the white hit rates were 20 percent higher than those for Latinos, which in turn were 20 percent higher than those for African Americans. Thus, according to Harris, although the police claimed that racial profiling increased accuracy, it actually diminished it.

How do we account for this disparity? It would seem that if offenders are more often members of a particular group, then we should concentrate on that group to improve accuracy. Harris explained that concentrating on race only serves to distract law enforcement officers from the most effective way to prevent crime: rigorous observation of individual behavior. In other words, racial profiling takes the officers' eyes off the ball, and causes them to look for "criminals" instead of criminal behavior. To make matters worse, the practice has unjustly oppressed particular minority groups in the community, causing fear and animosity.

Despite the evidence against racial profiling, part of my brain stubbornly exclaims, "A vast majority of the terrorists seem to be from the Middle East! We should start by looking for people from the Middle East, and focus our efforts on them!" Harris disagrees with this approach, however, and suggests that in order to ensure our safety, we need to sacrifice a bit of comfort and ease. He also advocates abandoning our current approach of allowing technology to lead our airport security efforts. Even the most advanced technology can miss hidden explosives, which Harris reminds us are plentiful in today's world. He believes we must focus on training people to detect behaviors indicative of an imminent terrorist threat. I'm not so sure about that, but one thing is certain: wasting valuable time and resources on a practice which has been proven ineffective, as it seems racial profiling has been, is not keeping us safe from the threat of terrorism. I believe that as the public grows more dissatisfied with racial profiling and complaints against police agencies increase in number, further investigations into the practice are inevitable.

Mentioned in this article:

Prof. David A. Harris - SSRN Author Page
Profiling Laws by State - Amnesty International

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