Racial profiling refers to the use of ethnicity or race as grounds for suspecting individuals of having committed a particular offense. It can also be defined as the targeting of specific individuals (particularly on the basis of their race) by law enforcement authorities based on their personal characteristics rather than their behavior. Racial profiling is generally used to encompass more than only the race of a person. Apart from race, it may also encompass; ethnicity, religion, and national origin. The degree to which law enforcement authorities use these personal characteristics or impermissible means to determine which individuals to stop, question, detain or subject them to other law enforcement activities is also a significant factor here. Note that the qualifying term “impermissible” in the definition indicates that reliance on the enforcement authorities on ethnicity, national origin, religion or race is not prohibited in all circumstances. Rather, it aims at law enforcement activities premised on the erroneous assumption that individuals of a certain race, national origin, religion or ethnicity are more likely to be associated with particular types of unlawful conduct than other from another ethnicity, race, religion or national origin. Therefore, it’s not racial profiling when law enforcement authorities rely on these personal attributes as part of a subject description or connect it with an investigation if there exists sufficient or reliable information that links a person of certain ethnicity, race, religion or national origin to a particular scheme, organization or incident. ("What Is Racial Profiling?” 2016).
On the other hand, profiling refers to any action initiated by the police that uses a compilation of the physical, motivational, behavioral or even background characteristics for a kind of perpetrator to identify a certain individual as being, having been engaged in criminal activity or having the potential to perpetrate a crime (Shusta, Levine, Wong, Wolson, & Harris, 2014 p.346). Law enforcement officers, customs and border patrol agents, and airport security personnel among other occupations use profiles. It is the only way to narrow the amount of information from which to make decisions such as whether or not to stop a person for further investigations.
Law enforcement officers use profiling to look for characteristics that indicate the probability of criminal acts or factors that tend to correlate with threatening or dangerous behavior. For most officers, most characteristics have been internalized based on training and experience. If they have experienced dangerous encounters while on duty, these experiences prepare them for similar future events. The experience and training the officers acquire provides them with indicators to look for so as to prevent harm to themselves and others as well as identify suspicious events or individuals and warrant closer attention. The focus helps police officers and civilians to decide what action is wise to take when confronted by a similar situation or person. This doesn’t necessarily mean officers using profiling in this way are biased. Some degree of profiling tends to be appropriate or even necessary if it doesn’t involve abuse. Some people (like writer Ira Straus) would go further to describe profiling as stereotyping. According to Straus, profiling is universal and just like the police; everyone depends on it for a preliminary rating of their risks with every individual they run into, and if they do not profile explicitly, then they do it implicitly. If they do not profile consciously, they do it unconsciously. Straus writes that all investigative and police efforts involve working from direct and indirect ends. The direct end means following the trail of particular leads and informants and the indirect end being profiling. He further states “To profile is morally risky…the dangers of unfair and unreasonable profiling that is profiling based on unfounded prejudices such as racism are well-known. (Straus 2002) He further implies that profiling is not always based on accurate data or information. When meanings placed on observations are biased, assumptions and conclusions may be incorrect, thus leading to inappropriate actions, behavior and attitudes (p.347)
In the definition mentioned above for racial profiling, race doesn’t need to be the only factor used by law enforcement authorities to decide whom to subject to investigative procedures. Race is often a factor even when individuals are not targeted by law enforcement authorities only because of their race. As a matter of fact, it’s a decisive factor in guiding law enforcement decisions on who to stop, question, detain or subject to other investigative procedures. Selective law enforcement based partly on race is no less offensive to the principle of equal justice or pernicious than law enforcement based solely on race.
Perceived or actual racial profiling by law enforcement officers mainly affects Hispanics, blacks, and Arab Americans among other minority groups from all walks of life. In fact, racial profiling cuts across every vocation and all levels of the socioeconomic ladder. The extent to which an individual’s ethnicity, race or national origin can be easily used as factors to target suspects for stops, searches, questioning and detainment has been a great concern of law enforcement and citizens for quite some time. The unsupported assertion that an officer making field and traffic interrogation stops of nonwhite individuals is making a race-based decision that is deeply rooted in racial prejudice is what compounds the controversy over racial profiling. The growing concerns became even more critical especially by (Arab Americans) since the war on terror was declared on September 11, 2001 (p 345).
Racial profiling dates back to the 1990s when numerous concerns were raised about police using racial profiling as a pretext to stop, search, question and perhaps arrest individuals. This became a major focus of scholars, researchers, politicians, law enforcement administrators and more importantly minority communities and individuals. National surveys during that period indicated that most Americans (both white and black) believed racial profiling was commonplace in the United States although 80 percent of respondents opposed the practice. People felt that the police were often guilty of bias in their treatment of ethnic and racial minorities and that the behavior had been going on for a long time. (p.346)
The cause of racial profiling can be attributed to the way people often form tentative judgments or mental images about others and the surrounding situation or circumstances both consciously and subconsciously which might be a form of stereotyping. It is this type of stereotyping or rather looking for what one perceives to be indicators that offer a preliminary mental rating of potential risk to an individual encountering a particular person or event. This mental action involves both the conscious and unconscious thought processes whereby a person;
• Makes observations and selects data obtained from that person’s past experiences
• Adds personal and cultural meaning to what he/she observes
• Makes assumptions based on the meaning attributed to observations
• Draws conclusions based on his/her own beliefs and
• Takes action
This process comprises fundamental decision making for all people in their lives and guides a person’s interpretation of events. The socialization of a person including how they were raised by their parents plays a significant role in determining decisions and actions that follow these judgments in both personal and professional settings.
The U.S. Supreme Court, however, has held that racial profiling is unconstitutional as it violates the constitutional requirements that all citizens be accorded equal protection of the law. The "Guidance Regarding the Use of Race by Federal Law Enforcement Agencies" issued by the United States department of justice in 2003 says; “Racial profiling" at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity. Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society”.
The federal government may have declared racial profiling as “wrong,” “ineffective,” “invidious,” and “harmful to our rich democracy” but it persists as confirmed by quantitative and qualitative evidence collected at local, state and federal levels. The evidence also indicates that racial profiling is routinely encouraged by misguided federal policies and programs that incentivize and encourage law enforcement authorities to engage in the malpractice. Racial profiling is mainly used in three contexts namely;
• Street-level crime and
• Immigration law enforcement
This breakdown is artificial to some extent, and there are obvious points of overlap among the contexts. For instance, when Hispanics are targeted by law enforcement officers for engaging in drug trafficking or other street-level crimes find themselves profiled as suspects of undocumented immigration. Arab Americans who are targeted as potential terrorists are also questioned whether they are in the country illegally. It’s critical to discuss racial profiling in each of the three mentioned contexts separately even if it allows for a more context-specific analysis.
Before September 11, 2001, the use of law enforcement agencies of profiles including race, national origin or ethnicity and the act of profiling using these criteria had come to be condemned in the United States. In fact, there was an outcry among the general public against these actions as 80 percent of Americans opposed racial profiling. After the horrendous terror attacks on New York’s World Trade Center and the Pentagon, the attitude changed. Polls taken afterward indicated that 70 percent of Americans deemed it necessary to conduct some form of profiling so as to promote public safety. The US department of homeland security (DHS) was established, and law enforcement agencies and the military was challenged to foster security. The scope of the state of emergency created by the terrorist altered both government policy and public opinion on profiles and profiling based on ethnicity and national origin particularly regarding the legitimacy and necessity of the practices. (p.348)
The global terrorist threat from the Taliban, al-Qaida among other Islamist extremists and the conflicts in the Middle East made the police at all levels to develop strategies for detecting and arresting terrorists. Tentative profiles were hurriedly developed based on obvious experience and characteristics. Since all terrorists involved in the 9/11 attacks were Islamic males originating from the Middle East, the issue was whether security personnel or law enforcement officers could profile suspicious men with similar backgrounds for stops, increased questioning or searches. Profiling using those criteria began to be exercised based on various factors that were common to these particular terrorists;
• Young males that appear to be Arabs
• Primarily originating from Saudi Arabia
• Harboring deep hatred of immorality, materialism, and western decadence
• Trained in fundamentalist religious or al-Qaida camps in Pakistan or Afghanistan
• Adherents of Islam inspired by fundamentalist clergy to religious extremism
• Street level crime
Empirical evidence supports the existence of racial profiling on USA’s roadways. A 2005 national report (the most recent data available) by the Bureau of Justice Statistics in the US Department of Labor indicated that there was lack of uniformity during traffic stops as police actions were based on racial and ethnic categories. Black drivers (4.5%) were twice likely to be arrested during a traffic stop than white drivers (2.1%) Hispanic drivers (65%) were more likely to receive a ticket than Black (55.8%) or White (56.2%) drivers. Moreover, Whites (9.7%) were more likely to receive a written warning than Hispanics (5.9%). Also Whites (18.6%) were more likely to get a verbal warning from the police than Blacks (13.7%). In regards to searching minority motorists at a traffic stop, Black motorists (9.5%) and the Hispanic ones (8.8%) were searched at higher rates than their White counterparts (3.6%). This probability of experiencing a search did not change for any race be it Blacks, Hispanics or whites from the year 2002 to 2005. Several quantitative pieces of evidence reported in various states including California, New York, Arizona, New Jersey, Mississippi, Texas and Illinois among others confirms this nationwide data.
• Immigration law enforcement
The federal government has shifted much if its responsibility for the enforcement of civil immigration laws to local and state law enforcement authorities. DHS’s Immigration and Customs Enforcement (ICE) is accountable for enforcing federal immigration laws via Agreements of Cooperation in Communities to Enhance Safety and Security (alias ICE ACCESS programs). Most notable of these programs is the 287 (g) program of the Immigration and Nationality Act. This program allows local and state law enforcement to enter into a Memorandum of Agreement with DHS that allows them to perform limited immigration enforcement activities as long as there is training and supervision by ICE. Unfortunately, clear statements of intent have not guided the operation of this program. Together with the 2002 OLC “inherent authority,” the program has been used by local land state law enforcement officers to stop, question and detain Hispanic individuals. The Hispanic community was targeted in a big way to enforce federal immigration laws, thereby profiling large numbers of Hispanics most of whom are legal American citizens as suspected illegal immigrants. ("The Reality of Racial Profiling", 2016).
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