It is early in the morning, and the well-dressed young African-American man driving his Ford Explorer on I-75 sees the blue lights of the Georgia State Patrol car behind him. The officer pulls behind the sport utility vehicle and the young man's heart begins to sink.
He is on his way to Atlanta for a job interview. The stop, ostensibly for speeding, should not take long, he reasons, as the highway patrol officer walks cautiously toward the Explorer. But instead of simply asking for a driver's license and writing a speeding ticket, the trooper calls for backup. Another trooper soon arrives, his blue lights flashing as well.
The young man is told to leave his vehicle, as the troopers announce their intention to search it. "Hey, where did you get the money for something like this?" one trooper asks mockingly while he starts the process of going through every inch of the Explorer. Soon, an officer pulls off an inside door panel. More dismantling of the vehicle follows. They say they are looking for drugs, but in the end find nothing. After ticketing the driver for speeding, the two officers casually drive off. Sitting in his now-trashed SUV, the young man weeps in his anger and humiliation.
Unmotivated searches like this are daily occurrences on our nation's highways, and blacks and white liberals have been decrying the situation for several years. Many conservatives, on the other hand, dismiss such complaints as the exaggerations of hypersensitive minorities. Or they say that if traffic cops do in fact pull over and search the vehicles of African Americans disproportionately, then such "racial profiling" is an unfortunate but necessary component of modern crime fighting.
The incident described above should give pause to those who think that racial profiling is simply a bogus issue cooked up by black leaders such as Al Sharpton and Jesse Jackson to use as another publicity tool. One of us teaches in an MBA program that enrolls a fairly large number of African Americans, and the story comes from one of our students. Indeed, during class discussions, all of the black men and many of the black women told stories of having their late-model cars pulled over and searched for drugs.
While incidents of racial profiling are widely deplored today, there is little said about the actual root cause of the phenomenon. The standard explanations for racial profiling focus on institutional racism, but that idea runs contrary to the sea change in social attitudes that has taken place over the last four decades. On the contrary, the practice of racial profiling grows from a trio of very tangible sources, all attributable to the War on Drugs, that $37 billion annual effort on the part of local, state, and federal lawmakers and cops to stop the sale and use of "illicit" substances. The sources include the difficulty in policing victimless crimes in general and the resulting need for intrusive police techniques; the greater relevancy of this difficulty given the intensification of the drug war since the 1980s; and the additional incentive that asset forfeiture laws give police forces to seize money and property from suspects. Since the notion of scaling back, let alone stopping, the drug war is too controversial for most politicians to handle, it's hardly surprising that its role in racial profiling should go largely unacknowledged.
The Practice of Racial Profiling
Although there is no single, universally accepted definition of "racial profiling," we're using the term to designate the practice of stopping and inspecting people who are passing through public places—such as drivers on public highways or pedestrians in airports or urban areas—where the reason for the stop is a statistical profile of the detainee's race or ethnicity.
The practice of racial profiling has been a prominent topic for the past several years. In his February address to Congress, President George W. Bush reported that he'd asked Attorney General John Ashcroft "to develop specific recommendations to end racial profiling. It's wrong, and we will end it in America." The nomination of former New Jersey Gov. Christine Todd Whitman as head of the Environmental Protection Agency was challenged on the basis of her alleged complicity in racial profiling practices in the Garden State. Whitman had pioneered her own unique form of "minority outreach" when she was photographed frisking a black crime suspect in 1996. Copies of the photo were circulated to senators prior to her confirmation vote. (By the same token, in February 1999, Whitman fired State Police Superintendent Carl A. Williams after he gave a newspaper interview in which he justified racial profiling and linked minority groups to drug trafficking.) More recently, Eleanor Holmes Norton, the District of Columbia's non-voting member of Congress, has tried to introduce legislation that would withhold federal highway dollars from states that have not explicitly banned racial profiling.
Although some observers claim that racial profiling doesn't exist, there is an abundance of stories and statistics that document the practice. One case where law enforcement officers were particularly bold in their declaration of intent involved U.S. Forest Service officers in California's Mendocino National Forest last year. In an attempt to stop marijuana growing, forest rangers were told to question all Hispanics whose cars were stopped, regardless of whether pot was actually found in their vehicles. Tim Crews, the publisher of the Sacramento Valley Mirror, a biweekly newspaper, published a memo he'd gotten from a federal law enforcement officer. The memo told park rangers "to develop probable cause for stop…if a vehicle stop is conducted and no marijuana is located and the vehicle has Hispanics inside, at a minimum we would like all individuals FI'd [field interrogated]." A spokeswoman for Mendocino National Forest called the directive an "unfortunate use of words."
The statistics are equally telling. Consider Crises of the Anti-Drug Effort, 1999, a report by Chad Thevenot of the Criminal Justice Policy Foundation, a group that monitors abuses of the American legal system. Thevenot writes: "76 percent of the motorists stopped along a 50-mile stretch of I-95 by Maryland's Special Traffic Interdiction Force (STIF) were black, according to an Associated Press computer analysis of car searches from January through September 1995….Blacks constitute 25 percent of Maryland's population, and 20 percent of Marylanders with driver's licenses." As this story was being written, New Jersey was holding hearings on racial profiling, and one state police investigator testified that 94 percent of the motorists stopped in one town were minorities.
Minorities are not only more likely to be stopped than whites, but they are also often pressured to allow searches of their vehicles, and they are more likely to allow such searches. In March, The New York Times reported that a 1997 investigation by New Jersey police of their own practices found that "turnpike drivers who agreed to have their cars searched by the state police were overwhelmingly black and Hispanic."
Some commentators, such as John Derbyshire in National Review, have defended racial profiling as nothing more than sensible police technique, where police employ the laws of probability to make the best use of their scarce resources in attacking crime. As Derbyshire put it in his February 19 story, "In Defense of Racial Profiling," the police engage in the practice for reasons of simple efficiency: "A policeman who concentrates a disproportionate amount of his limited time and resources on young black men is going to uncover far more crimes—and therefore be far more successful in his career—than one who biases his attention toward, say, middle-aged Asian women."
George Will, in an April 19 Washington Post column, contends that the use of race as a criterion in traffic stops is fine, as long as it is just "one factor among others in estimating criminal suspiciousness." Similarly, Jackson Toby, a professor of sociology at Rutgers, argued in a 1999 Wall Street Journal op-ed that, "If drug traffickers are disproportionately black or Hispanic, the police don't need to be racist to stop many minority motorists; they simply have to be efficient in targeting potential drug traffickers."
Clayton Searle, president of The International Narcotics Interdiction Association, writes in a report, Profiling in Law Enforcement, "Those who purport to be shocked that ethnic groups are overrepresented in the population arrested for drug courier activities must have been in a coma for the last twenty years. The fact is that ethnic groups control the majority of the drug trade in the United States. They also tend to hire as their underlings and couriers others of their same group." (Searle's report is available at www.inia.org/whats-new.htm#Profiling.)
Case Probability vs. Class Probability
The stories and statistics that draw outrage tend to share two common elements: They involve a search for drugs and the prospect of asset forfeiture. These types of investigations have led police from the solid ground of "case probability" to the shifting sands of "class probability" in their quest for probable cause. Once police are operating on the basis of class probability, there is a strong claim that certain groups of people are being denied equal protection under the law.
Case probability describes situations where we comprehend some factors relevant to a particular event, but not all such factors. It is used when a doctor tells a patient, "Given your lifestyle, you'll probably be dead in five years." Class probability refers to situations where we know enough about a class of events to describe it using statistics, but nothing about a particular event other than the fact that it belongs to the class in question. Class probability is being used when an insurance company estimates that a man who is 40 today will probably live to be, on average, about 80. The insurance company is not making any statement about the particular circumstances of any particular man, but merely generalizing about the class of 40-year-old men.
This distinction helps us to differentiate two ways of using information about race or ethnicity in a police investigation. As an example of the first type, employing case probability, consider a mugging victim who has told the police that her mugger was a young Asian man. Here, it is quite understandable that the group of suspects investigated will not "look like America." There is no sense in forcing the police to drag in proportional numbers of whites, blacks, women, and so on, proving that they have interrogated a representative population sample of their city, before they can arrest an Asian fellow. No, their investigation should clearly focus on young Asian men.
It's not at all impossible that a prevalence of some type of criminal activity in some ethnic group will lead to many investigations that focus on members of that group. As long as this is based on evidence gathered from particular crimes, there is nothing untoward here. If it turns out, for instance, that Bulgarians are especially numerous among purse-snatchers in some city, then a summary of police interrogations might discover evidence of "Bulgarian profiling" in the investigation of purse-snatching. But this may be a statistical mirage if it turns out that no one in the police force set out to focus on Bulgarians as potential purse-snatchers. The emergent result is an unintended outcome of policemen following an entirely valid principle of crime investigation: Concentrate on suspects who fit the description you have of the suspect.
But when we turn our attention to the type of racial profiling that occurred on the highways of Maryland and New Jersey, or that is described in the Forest Service memo, we find a very different phenomenon, one where investigations proceeded on the basis of class probability. Here, before having evidence of a particular crime, police set out intending to investigate a high proportion of people of some particular race, ethnic group, age group, or so on. Their only justification is that by doing so, they increase their chances of discovering some crimes.
Additionally, there is a fundamental difference between the type of crime, such as the mugging example above, that is usually investigated by gathering evidence about a known crime, and narrowing the search based on such evidence, and the type investigated by looking in as many places as possible to see if one can find a crime. The first type of crime generally has a victim, and the police are aware of a specific crime that has been committed. The crime is brought to the attention of the police by a complainant, even if the complainant is a corpse.
George Will, in his defense of current police practice, points out: "Police have intelligence that in the Northeast drug-shipping corridor many traffickers are Jamaicans favoring Nissan Pathfinders." This is quite a different situation than having intelligence that a particular Jamaican robbed a store and escaped in a Pathfinder. If you are a law-abiding Jamaican who by chance owns a Pathfinder, you frequently will find yourself under police surveillance, even though the police have no evidence about any particular crime involving any particular Jamaican in a Pathfinder.
We could not have any effective law enforcement without allowing some scope for case probability. If your twin brother robs a bank in your hometown, it does not seem to be a civil rights issue if the police stop you on the street for questioning. When the police discover their mistake, they should apologize and make you whole for any damages you have suffered. Such an event, while unfortunate, is simply a byproduct of attempting to enforce laws in a world of error-prone human beings possessing less-than-perfect knowledge. It will be a rare event in law-abiding citizens' lives, and it is highly unlikely that such people will come to feel that they are being targeted.
However, the use of class probability in police investigations is correctly regarded with extreme suspicion, as it violates a basic principle of justice: The legal system should treat all citizens equally, until there is specific, credible evidence that they have committed a crime. In the cases we've been discussing, we can say that the odds that any particular young black or Hispanic man will be hassled by the police are much higher than for a white man who, aside from his race, is demographically indistinguishable from him. These minority men, no matter how law-abiding they are, know that they will be investigated by the police significantly more often than other citizens who are not members of their racial group. The social cost of the alienation produced by this situation cannot, of course, be measured, but common sense tells us that it must be great.
As important, in the majority of "crimes" that such stops discover, there is no third party whose rights have been violated, who can step forward and bring the crime to the attention of the police. To discover victimless crimes, investigators must become intrusive and simply poke around wherever they can, trying to see if they can uncover such a crime. When someone drives a few pounds of marijuana up I-95 from seller to buyer, who will come forward and complain? It's not merely that, as in the cases of robbery or murder, the perpetrator may try to hide his identity, but that the "crime" has no victim.
Drug War Profiling Practices
Both statistical studies and anecdotal evidence support the view that drug crimes are the almost exclusive focus of investigation in racial profiling cases. Hence, The New York Times reported in February that, "The New Jersey State Police said last week that the number of drug arrests on the Garden State Parkway and the New Jersey Turnpike fell last year, after the department came under scrutiny for racial profiling. The number of drug charges resulting from stops on the turnpike were 370 last year, compared with 494 drug charges in 1999. There were 1,269 charges filed in 1998. On the parkway, troopers reported 350 drug charges last year compared with 783 in 1999 and 1,279 in 1998."
The Record, a Bergen, New Jersey, newspaper, obtained state police documents last fall. One document, used for training, teaches troopers to zero in on minorities when scanning state roadways for possible drug traffickers. Titled "Occupant Identifiers for a Possible Drug Courier," the document instructs troopers to look out for "Colombian males, Hispanic males, Hispanic and a black male together, Hispanic male and female posing as a couple." (One's mind boggles at how the police are able to detect that two Hispanics are "posing" as a couple as they zip by at 60 miles per hour.) The undated document also teaches troopers how to use supposed traffic violations, such as "speeding" and "failure to drive within a single lane," as a pretext to pull over suspected drug couriers.
If police have a goal of maximizing drug arrests, they may indeed find that they can achieve this most easily by focusing on minorities. Blacks on I-95 in Maryland, for instance, had a significantly higher initial propensity to carry drugs in the car than did whites. "Racial Bias in Motor Vehicle Searches: Theory and Evidence," a 1999 study by University of Pennsylvania professors John Knowles, Nicola Persico, and Petra Todd, shows that despite the fact that blacks were stopped three-and-a-half times more than whites, they were as likely to be carrying drugs. But this doesn't mean their propensity to carry is the same. If we assume that the high likelihood of being stopped reduces some blacks' willingness to carry drugs, then if not for the stops, they would have been carrying proportionally much more than whites. The Penn professors conclude they are displaying what they call "statistical discrimination" (i.e., the police are operating on the basis of class probability) rather than racial prejudice. Perhaps more to the point, they conclude that the police are primarily motivated by a desire to maximize drug arrests.
Some racial profiling defenders agree that the drug war bears a large part of the blame for racial profiling. "Many of the stop-and-search cases that brought this matter into the headlines were part of the so-called war on drugs," writes Derbyshire. "The police procedures behind them were ratified by court decisions of the 1980s, themselves mostly responding to the rising tide of illegal narcotics." But Derbyshire dismisses the argument that racial profiling is chiefly a byproduct of the drug war. He contends that even if drugs were legalized tomorrow, the practice would continue.
He is confusing the two forms of police procedure we have outlined above. The practice of laying out broad dragnets to see what turns up would almost entirely disappear but for the attempt to stamp out drug trafficking and use. Derbyshire, to bolster his case, cites the fact that in 1997, "Blacks, who are 13 percent of the U.S. population, comprised 35 percent of those arrested for embezzlement." This statistic would be useful if he were defending the fact that 35 percent of those investigated for embezzling that year were black. But does Derbyshire believe that stopping random blacks on an interstate highway is catching very many embezzlers? Or that, absent the drug war, cops would start searching cars they pull over for embezzled funds?
How Asset Forfeiture Fuels Profiling
In the 1980s, state legislatures and Congress were frustrated with their inability to arrest and convict "drug kingpins." So they passed laws that gave police the power to seize the property of suspected dealers. The dubious rationale: The "pushers'" property had been purchased through ill-gotten gains and hence didn't rightly belong to them. (Questions about establishing actual guilt were brushed aside as counterproductive.) The federal Comprehensive Crime Act of 1984 was the most important of these measures, as it allowed local police agencies that cooperated in a drug investigation to keep the vast majority of the assets seized.
In addition, the Department of Justice decided that police in states that did not allow their agencies to keep asset forfeiture proceeds could have the feds "adopt" their seizures. The Kansas City Star's Karen Dillon has done extensive investigative reporting on asset forfeiture over the past three years. She writes: "Wisconsin law mandates that forfeiture money goes to public schools, but only $16,906 went into Wisconsin's education fund during the year ending in June 1999, according to the state treasury department. During just six months of the same period, local law enforcement gave the federal government $1.5 million in seizures."
In a paper published in the September 2000 issue of the economics journal Public Choice, "Entrepreneurial Police and Drug Enforcement Policy," Brent D. Mast, Bruce L. Benson, and David W. Rasmussen report that forfeiture receipts roughly doubled every year for several years after the passage of the Comprehensive Crime Act. According to the Sourcebook of Criminal Justice Statistics, the total value of Drug Enforcement Administration seizures reached nearly $1 billion in 1992. A large amount of that revenue flows back from the federal government to state and local police departments. Dillon notes: "In 1997 and 1998, the St. Louis Metropolitan Police Department received back more than $2.5 million. In 1998 alone, the Georgia Bureau of Investigation took back $1.7 million."
A letter to the International Narcotics Interdiction Association (INIA) from the Richmond Metro Interdiction Unit, posted on INIA's Web site, is accompanied by a photo of two cops in front of a pile of $298,440. The letter says: "We took this money off a guy coming from NY to Miami on Amtrak about two weeks after returning from SKY NARC [an INIA training session] in Anaheim. It was a great school and as you can see it paid off."
The U.S. Department of Justice reports: "Collectively, local police departments received $490 million worth of cash, goods, and property from drug asset forfeiture programs during fiscal 1997. Sheriffs' departments had total receipts of $158 million."
This kind of money adds a major incentive to police efforts to discover drug crimes. The study by Mast, Benson, and Rasmussen concludes: "The results for the impact of asset seizure laws are robust….Police focus relatively more effort on drug control when they can enhance their budgets by retaining seized assets. Legislation permitting police to keep a portion of seized assets raises drug arrests as a portion of total arrests by about 20 percent and drug arrest rates by about 18 percent."
Of course, if the police begin harassing all motorists in a particular locale, support for their activities will soon evaporate. However, if they can identify a minority group that is somewhat more likely to commit a particular drug crime—and if they know that members of that group are not politically powerful—then the police can focus on those people in order to enhance their departmental revenue.
The usual supposition, that the accused is innocent until proven guilty, has been explicitly reversed in asset forfeiture cases. The authorities are not required to prove that a crime, involving the goods in question, has been committed. Instead, they must merely have "probable cause" for the seizure; the burden of proof is on the defendant trying to recover his property. The Schaffer Library of Drug Policy (druglibrary.org/schaffer) has found that 80 percent of those who have had assets seized are never charged with a crime, let alone convicted of one. Federal law provides for up to five years in prison for attempting to prevent one's own property from being grabbed.
It did not take long for those in law enforcement to conclude that their best haul would come from seizing goods from citizens who lack the resources to win them back. In one highly publicized case that occurred in 1991, federal authorities at the Nashville airport took more than $9,000 in cash from Willie Jones, a black landscaper who was flying to Houston in order to purchase shrubs. According to the police, that money could have been used to purchase drugs. After spending thousands of dollars and two years on the case, the landscaper was able to convince the courts to return most of the seized cash.
Sam Thach, a Vietnamese immigrant, found himself in a similar situation last year. He was relieved of $147,000 by the DEA while traveling on Amtrak. Thach was investigated because the details of his ticket purchase, which Amtrak shared with the DEA, "fit the profile" of a drug courier. He was not charged with any crime and is now fighting to retrieve his money in federal court. (See "Railway Bandits," Citings, July.)
When the University of Pennsylvania study and the study by Mast, Benson, and Rasmussen are considered in tandem, the implication is clear. The possibility of rich pickings through asset forfeiture, combined with the higher propensity for black motorists to carry drugs, provides police departments with a tremendous incentive to engage in racial profiling. It is hardly surprising, then, that police take the bait, even at the cost of racial bias accusations and investigations.
Last year, in reaction to high-profile cases of abuse, Congress passed legislation that changed the standard in federal civil asset forfeiture cases. Rather than showing "probable cause" that property was connected to a crime, the feds must now demonstrate "by a preponderance of the evidence" that the property was used in or is the product of a crime, a significantly higher legal standard. The revised law also awards legal fees to defendants who successfully challenge property seizures and gives judges more latitude to return seized property. Exactly what effect the law will have on federal agents, or on state and local cops, is not yet clear.
This Is Your Law Enforcement on Drugs
In the panic created by the drug war, our traditional liberties have been eroded. Rather than regarding case probability as a necessary component of probable cause for searches or seizures, the American law enforcement system has now come to accept class probability as sufficient justification for many intrusions.
Unfortunately, the current protests against racial profiling are not addressing the root causes of the practice. Politicians, eager to please voters, have created potentially greater problems by trying to suppress the symptoms. As John Derbyshire points out, the laws rushed onto the books to end racial profiling result in severe obstacles to police officers attempting to investigate serious crimes. He notes, "In Philadelphia, a federal court order now requires police to fill out both sides of an 8-1/2-by-11 sheet on every citizen contact." Unless our solution to this problem addresses its cause, we will be faced with the choice of either hindering important police work or treating some of our citizens, based on characteristics (race, age, and so on) completely beyond their control, in a manner that is patently unfair.
If we really wish to end the scourge of racial profiling, we must address its roots: drug laws that encourage police to consider members of broad groups as probable criminals. We must redirect law enforcement toward solving specific, known crimes using the particular evidence available to them about that crime. Whatever one's opinion on drug legalization may be, it's easy to agree that the state of seizure law in America is reprehensible, even given last year's minor federal reforms. It should be obvious that there's something nutty about a legal system that assumes suspects in murder, robbery, and rape cases are innocent until a trial proves otherwise, but assumes that a landscaper carrying some cash is guilty of drug trafficking.
Drugs, prohibitionists commonly point out, can damage a user's mind. They apparently can have the same effect on the minds of law enforcement officials.