THE NEW FACE OF RACIAL PROFILING:
How Terrorism Affects The Debate

By SHERRY F. COLB

Wednesday, Oct. 10, 2001

One need not be Nostradamus to see law enforcement changes in our future. Following the mass murders of September 11th, police at the national and local level have properly begun the process of developing strategies for detecting and apprehending terrorists.

Unlike ordinary criminal activity, terrorism cannot be addressed primarily by "solving" acts of terrorism after the fact. Punishing offenders, though desirable from a retributive perspective, will not stop most future acts of terrorism. The prospect of a prison term or a lethal injection is unlikely to deter any aspiring suicide bomber.

As a result, discovering terrorist missions at the inchoate stage, prior to harm, becomes a matter of great urgency. Among the many issues that may accordingly emerge is whether police, in the fight against terrorism, will be allowed to engage in racial profiling. The issue is hardly a new one, but a number of considerations may alter the terms of the debate.

Defining Racial Profiling: Using Race As A Factor

As a first step, it is useful to define "racial profiling," because people use the term to mean different things. When I refer to "racial profiling," I mean the law enforcement practice of taking the race of a potential suspect into account in deciding whether to initiate investigation of that suspect.

One need not consider race to the exclusion of all other factors to be engaged in racial profiling. Rather, a "profile" will often contain a variety of factors: If one or more of them is race, then we have a racial profile.

The most familiar instance of racial profiling is what some have dubbed "Driving While Black" (or "DWB"). This kind of profiling involves police stopping motorists on the pretext that they have committed a traffic violation — often a minor one.

Although a traffic violation might be the objective foundation for the stop, the actual reason might include the race of the suspect. Police sometimes assume that African-American drivers are more likely than white drivers to be transporting illicit drugs. This assumption appears to trigger a large number of roadside stops.

Once a police officer has stopped an African-American suspect pursuant to a profile, the officer may ask the suspect for consent to search the vehicle. For reasons I explored in an earlier column, suspects generally consent to these searches, even when they have drugs secreted within their vehicles.

In other words, "DWB" profile stops — in conjunction with consent searches that occur in their wake — provide an opportunity for police to look for narcotics in the absence of probable cause.

Profiling Denies Equal Protection By Targeting Immutable Characteristics

Those of us who oppose "DWB" profiling have articulated a number of independent reasons for that opposition. One reason, common to any official instance of racial stereotyping, is that it denies affected African-Americans the equal protection of the laws guaranteed every person by the Fourteenth Amendment.

It is unfair, in other words, to visit disproportionate burdens upon one segment of the population, defined by its racial characteristics. In part, this is because race is immutable and therefore cannot be altered to avoid unwanted disparate treatment.

On this score, any new law enforcement initiative involving terrorist profiling that rests on ethnic or racial characteristics would meet with the same objections as "DWB" profiling.

In Drug-Dealing, Statistics Defy Prejudices

A second reason so many people object to "DWB" profiling is that it rests on inaccurate factual assumptions about criminal conduct. Specifically, when police disproportionately stop African-Americans on the highway, they operate on the basis of myths about the distribution of drug-related activities among various sectors of the population. Police officers might expect to find a stash of drugs when they search an African-American's vehicle. Yet in fact, they are no more likely to do so than they are to turn up drugs in a white person's car.

Many thus see "DWB" racial profiling as objectionable in part because it is useless in waging the "war on drugs." Disproportionately pulling over African-American drivers in large numbers does not in fact further the law enforcement interest in apprehending drug criminals. "DWB" therefore represents an arbitrary exercise of power that needlessly intrudes upon cherished liberty and privacy.

What If There Were A True Racial Disparity?

What does it mean, precisely, to say that "DWB" profiling is ineffective and arbitrary? It cannot mean only that innocent African-Americans suffer undeserved intrusions when such policies are in effect. They do suffer these intrusions, of course, but that would be true even if racial profiling were based on statistically significant disparities in criminal behavior.

Say, for example, that one out of four white drivers was transporting illicit substances in the trunk of his car, while only one out of fifty African-American drivers was similarly transporting. If this were true, then race alone would provide a very potent means of distinguishing drug couriers from the rest of the driving population.

Under this racial disparity scenario, however, it would still be the case that 75% of white drivers stopped purely on the basis of race would be innocent and thus undeserving of police attention. This is an inevitable feature of conducting searches on less than perfect information: even legitimately based suspicion will often fall on innocents. Indeed, that cost is an inherent part of searches and seizures that take place on the authority of "probable cause" or "reasonable suspicion" rather than, for example, "guilt beyond a reasonable doubt" or a "preponderance of the evidence."

Will Racial or Ethnic Profiling of Terrorists Be Effective?

At this point, we are not in a position to judge accurately whether terrorist profiling that includes a racial or ethnic factor will be "effective" at preserving safety in the United States.

We do know that most American citizens and residents of all racial groups are innocent of terrorist activity and feel frightened by the events of September 11th. Therefore, stopping or otherwise intruding upon the privacy and liberty of people in a given group will certainly harm countless individuals who have done nothing to deserve such intrusions. This truth, however, will not entirely satisfy those who wish to consider the efficacy question.

Unlike the drug trade, in which very large numbers of people —of every race — are involved, there is reason to think that relatively few individuals here are engaged in planning terrorist attacks on the United States. Therefore, any criteria police use to identify or "profile" terrorists, whether or not those criteria rely on suspect classifications such as race, ethnicity, or national origin, will yield many more false positives than they will disclose true conspiring murderers. In other words, an overwhelming number of "suspects" will prove to be innocent, no matter what combination of factors is used to focus in on them.

It may turn out, moreover, that even though most people in any one ethnic group are innocent, the guilty nonetheless fall disproportionately within one group. Of course, it was also possible, before the data were in, that African-Americans would turn out to be disproportionately represented in the drug trade. It was a contingent fact — not an a priori truth — that they were not. It could accordingly turn out that in the case of terrorism, a particular segment of the population is in fact disproportionately represented among offenders. If the empirical reality is ultimately different for terrorism than it has been for drugs, then that difference could persuade some opponents of "DWB" profiling to support ethnic terrorism profiling.

The Urgent Interest In Stopping Terrorism

Yet another factor might lead some opponents of "DWB" to distinguish terrorism profiling. That factor is the urgency of the government interest that is at stake.

Large numbers of people apparently continue to support the "war on drugs," its utter failure (which I discussed in a prior column) notwithstanding. Yet even its most ardent supporters would probably admit that the prospect of drug distribution is not as threatening to this nation as the prospect of terrorism on American soil.

Though drug dealers are often violent, for example, their violence generally results from the unavailability of legal avenues for enforcing their contracts. Many individual drug transactions entail no violence at all. One could imagine a regime in which, once legal, the drug business could be entirely peaceful.

Terrorism, by contrast, does not lend itself to a similar legalization logic. There is no plausible argument that if only terrorism were legalized, it could be regulated and accordingly rendered nonviolent in nature. Terrorism is inherently violent and intolerable.

Why the Intense Interest Might Matter To the Debate

Why would anyone consider the interest in stopping terrorism relevant to the propriety of racial profiling? It would, of course, be irrelevant if profiling were to prove as ineffective in the war on terrorism as it has been in the war on drugs. And this is a distinct possibility. It may also be that terrorists from now on will consciously choose people falling outside of any profiled groups to carry out their atrocious objectives.

If, however, racial profiling turns out to be an effective way of narrowing down lists of potential suspects, then the compelling nature of the government interest could strike many people as highly relevant. Indeed, the constitutional test of when racial classifications are legally permissible is the "compelling interest test," in which courts scrutinize such classifications for whether their employment is narrowly tailored to achieve a compelling governmental interest.

If an effective terrorist profile were to emerge, and that profile included race among factors giving rise to suspicion, its efficacy could lead some opponents of "DWB" profiling to embrace its legality.

Past, Present, and Future Profiling

The notion of using race to determine someone's likely willingness to slaughter Americans is, of course, not entirely new.

The United States Supreme Court, in one of its most despised opinions, Korematsu v. United States, upheld the internment of Japanese Americans after Japan's attack on Pearl Harbor in 1941. Anyone of Japanese descent residing on the pacific coast of the United States was presumed to be a traitor and accordingly placed in what were essentially prisoner-of-war camps.

Very few people today defend this nation's treatment of Japanese Americans. In part, this is because there appeared to have been no credible grounds — other than pure racial animus and fear — for directing suspicion at the U.S. population subject to internment.

But in part, condemnation of Korematsu may also stem from the belief that a denial of equality on the basis of race is simply wrong, no matter how effective it might be in realizing important objectives. And the objective defended in Korematsu — winning World War II and defeating the Nazis — was theoretically no less compelling than the present need to protect the country from terrorism.

Whatever this nation decides, future generations may judge us as harshly as we now judge the supporters of internment during World War II. We must therefore consider our nation's past, present, and future in facing the difficult challenge of profiling in an age of terrorism.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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