Racial profiling and criminal justice

SIGNIFICANCE:Recognized as an ongoing major problem in the United States, racial profiling is damaging to everyone it touches—from its victims to the police officers who employ it and society as a whole.

Criminal profiling is a recognized technique of law enforcement that is used to help identify and apprehend criminal suspects. Police investigators establish “profiles” of typical offenders of specific crimes and then try to find suspects who match those profiles. The more variables the police consider in building a profile, the greater the probability that the profile is accurate. A central problem with racial profiling is that it is based on race, or ethnicity, and only a small number of other variables, such as sex and age.

Racial profiling is based on the assumption that members of certain racial and ethnic groups are more likely than other people to commit certain types of crime. An example of a particularly common assumption is that because many young Black American men have been arrested for drug crimes, young Black American men in general are more likely to commit such crimes. Acting on that assumption, law-enforcement officers who see young Black men in neighborhoods known to be centers of drug crime might feel justified in stopping and questioning them, simply because they appear to fit a drug-dealer “profile.” Such stops may sometimes actually help police apprehend drug dealers who might otherwise escape arrest. However, officers practicing racial profiling also stop many entirely innocent young Black men.

The central problem with racial profiling is that it tends to stigmatize whole groups of people, even though most members of the stigmatized groups are law-abiding citizens. As a consequence, members of the stigmatized groups may go through their lives feeling that they are something less than full members of society and are always in danger of being scrutinized and distrusted.

During the 1990s, the practice of racial profiling gained so much national attention that it became an issue of public debate. Public opinion turned against the practice, which seemed unfair, undemocratic, and perhaps even un-American. Finally, in the first state of the union address of the twenty-first century, a US president publicly spoke out against the practice. On February 27, 2001, President George W. Bush declared before a joint session of Congress that racial profiling was wrong and that it should be abolished in the United States. His message moved members of both parties to take action on the problem. The following June, a bipartisan bill, the End Racial Profiling Act of 2001, was presented to Congress.

However, in September, before Congress completed action on the bill, something happened that turned public opinion on racial profiling upside down. On September 11, Middle Eastern terrorists hijacked four American airliners and killed thousands of people in attacks on New York City and Washington, DC. Because the terrorists involved in the attacks were Muslim Arabs, a cloud of suspicion of all Middle Easterners and Muslims—as well as many other immigrants and Americans of foreign descent—descended over the United States. In the new, post–September 11 atmosphere of fear, national sentiment swung back in favor of allowing law-enforcement officers to detain and arrest suspicious-looking people on the basis of evidence as limited as their physical appearance. As a result, the End Racial Profiling Act of 2001 was never passed.

The Problem

Numerous studies have shown that police in many jurisdictions stop and question or initiate investigations of members of racially marginalized groups at rates fare greater than their representation in the general population would suggest is appropriate. Statistical evidence from across the country has consistently pointed to the conclusion that racial profiling, or racially biased policing, remained a measurable and real phenomenon into the 2020s.

An example of racial profiling on a large scale occurred in California in 1999, when the state’s Highway Patrol conducted a drug interdiction program called Operation Pipeline. The program utilized a profile provided by the federal Drug Enforcement Administration to make more than 34,000 traffic stops, only 2 percent of which resulted in drug seizures. Meanwhile, well over 33,000 motorists—most of whom were members of racial minorities—were detained and temporarily deprived of their rights.

In 2000, a federal General Accounting Office (GAO) study of the practices of the US Customs Service revealed evidence of racial profiling by federal agents. The GAO study found that during 1998, individual White women entering the United States carried with them contraband goods at a rate that was twice that of Black women. Nevertheless, the Black women were X-rayed for contraband at a rate nine times greater than the rate for White women. A general finding of the study was that the rates at which women and members of racially marginalized groups were selected by customs officials for intrusive searches was inconsistent with the rates at which members of the same groups were found to be carrying contraband.

Studies conducted by the US Department of Justice (DOJ) on law-enforcement treatment of suspects have found similar patterns and inconsistencies. For example, one study found that Black drivers were 20 percent more likely than White drivers to be stopped by police and that individual Black drivers were 50 percent more likely than White drivers to have been stopped more than once. Moreover, among all drivers who were stopped by police, Black people and Latinos were more than twice as likely as White people to be searched. The controversial use of stop-and-frisk policies, also often connected to racial profiling, particularly in areas such as New York City, also remained a concern over the years due to their disproportionate application against people of color. According to the New York Civil Liberties Union (NYCLU), in 2022, the NYPD made the largest number of stops since 2015 at just over 15,100, with only 35 percent resulting in an arrest or summons. Of those stopped, 59 percent were Black, 30 percent were Latino, and 7 percent were White.

Effects of Racial Profiling

Individual citizens, communities, police forces, and society in general all suffer when racial profiling occurs. Individuals subjected to racial profiling can be injured in a variety of ways. They may experience anxiety, anger, humiliation, cynicism, fear, resentment, or combinations of these responses. Racially biased policing can cause psychological trauma and racial profiling can violate an individual’s constitutional rights.

Racial profiling affects communities in several ways. The faith of communities in their local police tends to decline when the police engage in racial profiling because it humiliates and degrades all marginalized individuals. Profiling also degrades the legitimacy of the criminal justice system by breeding distrust between marginalized communities and the police.

The police tend to lose their effectiveness when the communities they are entrusted to protect lose confidence in them. Even when racial profiling is practiced only by a minority of police officers, the public is apt to lose confidence in the entire force.

One reason that racial profiling exists is that it reflects deeper societal attitudes about race. In fact, it tends to reflect the attitudes of members of all races about race. Support for this observation can be found in studies undertaken in the general population. In one such study, for example, subjects were shown two similar pictures. The first picture was of two young Black American men, both in unkempt clothing, standing on a street corner in a run-down neighborhood. One man was pointing a pistol at the other man. The second picture was exactly the same, except for the fact that both men were White.

When asked what was happening in the first pictures, most subjects—both White and Black—thought that the man with the gun was either holding up the other man or was about to kill him. By contrast, when asked about the second picture, most subjects—both White and Black—thought that the man with the gun was an undercover police officer. Tests such as that one have shown that the assumptions about race underlying racial profiling go well beyond police departments.

Progress

By mid-2004, nine states had passed legislation prohibiting racial profiling. Meanwhile, in February 2004, Senator Russ Feingold of Wisconsin and Representative John Conyers of Michigan introduced the End Racial Profiling Act of 2004 in both houses of the US Congress. The new bill was designed to do five things:

•prohibit racial profiling by all federal agencies

•require state and local police agencies applying for federal assistance to have policies that discourage racial profiling

•offer grants to local and state law-enforcement agencies to create programs that ensure racially neutral administration of justice

•require all government law-enforcement agencies to submit data to the US attorney general on the racial composition of the persons whom the agencies stop, investigate, or arrest

•require the US attorney general to process the data collected and submit to Congress annual summaries on the use of racial profiling throughout the United States

This bill was never passed, but found its way to Congress several times, including in 2015, after the 2014 shooting death of Michael Brown in Ferguson, Missouri. The resulting unrest in Ferguson, along with multiple cases of unarmed Black victims being shot by White police officers, brought racial profiling in law enforcement to the forefront of the national consciousness. However, no decision was made on the bill.

Ferguson also prompted President Barack Obama to direct the DOJ to collaborate with local police departments in order to provide tools, feedback, and resources for instituting practices against excessive force and biased policing. After Ferguson, the DOJ investigated the Ferguson Police Department for civil rights violations and also collaborated on a reform effort with St. Louis County, of which Ferguson is a part. The collaborative reform effort resulted in a report that indicated concerns about racial profiling data from the county’s police departments. In 2017, President Donald Trump’s attorney general, Jeff Sessions, announced that the focus of the DOJ’s collaborative reform policies would shift to crime prevention, including “proactive policing,” “effective intelligence and information sharing,” and training “for de-escalation strategies, crisis intervention, and citizen engagement to address violent crime.”

Despite the Trump administration's favoring of tough-on-crime policies and the upholding of law and order, many activists continued to protest further cases of disproportionate, seemingly discriminatory police use of force as well as other violent and even deadly acts of misconduct against people of color. Nationwide protests erupted after the 2020 police-involved killing in Minneapolis, Minnesota, of George Floyd, an unarmed Black man who was placed in a lengthy neck restraint by White officer Derek Chauvin during a detainment for the suspected use of a counterfeit bill during a store transaction. While Chauvin was ultimately tried and convicted of murder before he also pleaded guilty to violating Floyd's civil rights, many argued that the case was another prominent example of law-enforcement practices rooted in racist ideology and policies such as racial profiling. In both 2020 and 2021, a police reform bill, the George Floyd Justice in Policing Act, included a measure referred to as the End Racial and Religious Profiling Act, which had been introduced in earlier Congresses. Though the George Floyd Justice in Policing Act passed in the House both years, it stalled in the Senate. Still, bolstered by reports such as that released in 2022 indicating that the police department in Minneapolis had a history of engaging in racially discriminatory policies as well as more incidents of potentially discriminatory police-involved stops, use of force against, and killings of people of color, Democratic Senate members reintroduced the legislation once more in early 2023. However, as of mid-2024, it had not been introduced to the House of Representatives.

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