Racial Profiling

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Racial Profiling
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March 27, 2000
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Race as a Marker of Crime in Law

• Yick Wo v. Hopkins, 118 U.S. 356 (1886)
  Immigrant exclusion
• Harrison Act, Ch. 1, 38 Stat. 785 (1914) Drug
  Prohibition
• Korematsu v. United States, 323 U.S. 214 (1944)
  Japanese Internment
• Terrys Lost Racial Narrative
• Papachristou v. City of Jacksonville, 405 U.S.
  156 (1972) - loitering
• U.S. v. Harvey, 16 F.3d 109, 115 (6th Cir. 1994)
  drug courier profile
• Charles Stuart Stops in Boston precursor to
  Brown v Oneonta

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Reinforcing Cases

• U.S. v Brignoni-Ponce (422 U.S. 873, 1975)
  immigration and vehicle searches
• Profiles cease to become profiles when they
  become common knowledge US Border Patrol agent
• Martinez-Fuerte (428 U.S. 543, 1976) - border
• US v Lopez (328 F.Supp.1077, 1971) airline
• State v Ochoa (112 Ariz. 582, 544 P.2d. 1097,
  1976) stolen cars
• U.S. v Mendenhall (446 U.S. 544, 1980) airline
  and drugs
• U.S. v Sokolow (490 U.S. 1, 1989) airline and
  drugs
• Whren v US, 517 U.S. 806 (1996) drugs and cars
• Brown v Oneonta -- (195 F.3d 111 (2d Cir. 1999).
  racial profile of suspect
• Illinois v Wardlow (528 U . S . 119 , 2000)
  neighborhood as indicia of crime

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Reinforcing Policies

• Border patrol, cited in Brignoni-Ponce
• Computer Assisted Profiling System (CAPS). (See
  Act Oct. 9, 1996, P.L. 104-264, Title III, 307,
  110 Stat. 3252)
• Operation Pipeline DEA profiling strategy,
  http//www.usdoj.gov/dea/programs/pipecon.htm
• Broken Windows Targeting Disorder

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Is This Racial Profiling?

• Gross and Livingston Racial profiling occurs
  whenever a law enforcement officer questions,
  stops, arrests, searches, or otherwise
  investigates a person because the officer
  believes that members of that person's racial or
  ethnic group are more likely than the population
  at large to commit the sort of crime the officer
  is investigating..If the officer's conduct is
  based at least in part on such a general racial
  or ethnic judgment, it does not matter if she
  uses other criteria as well in deciding on her
  course of action..
• See, also, Deborah Ramirez et al., A Resource
  Guide on Racial Profiling Data Collection Systems
  (Nov. 2000) at http//www.usdoj.gov/cops/pdf/cp_re
  sources/pubs_prod/police_practices_
  handout/Section6.pdf

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Litigation Responses

• Racial Profiling
• United States v. New Jersey, No. 99-5970 (D. N.J.
  December 30, 1999) (consent decree entered)
• Memorandum of Agreement, Between the USDOJ,
  Montgomery County (MD) Department of Police, and
  the Fraternal Order of Police, Montgomery County
  Lodge 35, Inc., January 14, 2000,
  http//www.usdoj.gov/crt/cor/Pubs/mcagrmt.htm,
  visited December 5, 2000
• United States v. City of Los Angeles, No.
  00-11769 (C.D. California) (consent decreed)
• See, also, http//www.racialprofilinganalysis.neu.
  edu/legislation/doj.php
• Hybrid Claims (Use of Force and Racial Profiling)
• United States v. City of Pittsburgh, 97-0354
  (W.D. Pa. Apr. 16, 1997) (consent decree entered)
  
• United States v. City of Steubenville, C2-97-966
  (S.D. Ohio Sept. 3, 1997) (consent decree
  entered), http//usdoj.gov/cit/split/documents/ste
  ubensa.htm
• In re Cincinnati Policing, C-1-99-317 (S.D.Ohio
  2002), http//www.usdoj.gov/crt/split/Cincmoafinal
  .htm
• United States v. Highland Park (IL), 00-C-4212
  (2001), http//www.usdoj.gov/crt/split/documents/H
  ighland_MA.htm

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Legal Claims

• Not very complex
• Intersection of 4th and 14th Amendments
• 42 U.S.C. 1983, 42 U.S.C. 14141
• 4th Amendment
• Reasonable suspicion that criminal activity is
  afoot based on experience, observations,
  and/or information from others (Wardlow)
• Papachristou v Jacksonville, 405 U.S. 156 (1972)
  voiding for vagueness a vagrancy statute
• Suspect can be briefly detained by means of
  physical force or by show of authority
• Frisk is an easy path once a stop is effected
• See People v. DeBouer (40 NY2d 210 (1976)) for
  details on controlling law in NYS

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• 14th Amendment
• Race alone cannot justify intrusion (Daniels et
  al)
• Race is part of suspect description can justify a
  stop (Brown v Oneonta)
• Race cannot be a basis of reasonable suspicion
  apart from another factor (US v Whren, US v.
  Brignoni-Ponce)

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What Signals Suspicion?

• Easier to say what doesnt legally signal
  suspicion
• Bulge in waistband
• Refusal to identify yourself
• Nervousness
• Flight (see Wardlow)
• Location
• Suspicious companions
• Highway Context?
• Hard Driving
• Vehicle profiling, Driver/vehicle profiling

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Standards of Proof

• Disparate Impact v. Individualized Discrimination
  standards complicate 14th Amendment analysis,
  easier path to either marry 4th and 14th or
  pursue action based on 4th amendment alone
• See, Ian Ayres, Pervasive Prejudice (2002)
• Aggregation methods
• What standard?
• Disparate impact
• But for race..

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Research Challenges

• Street Stops and Highway Stops require different
  measures of the same data, but with different
  validity and conceptual challenges
• Street Stops
• Have to index stop rate to crime rate, not
  population rate
• What is base rate of crime? How measured? Rate
  per population index, but what population?
  Daytime versus nighttime estimates?
• Separate estimates by type of crime, since
  rationales vary
• Time of day? Day of week?
• Highway Stops
• Similar issues, though race-specific violation
  rates are harder to determine

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Research Strategies

• Estimating the Base Rate
• Street Stops
• UK Strategy (www.homeoffice.gov.uk/rds/policerspub
  s1.html)
• NYC Strategy (use crime rates in previous years)
• Highway Stops (observational strategies)
• Data Collection for Stops
• Compliance issues
• Accuracy issues
• Understanding Interactions
• Who is selected for stops? Why?
• Who is asked for consensual search? Why?
• The Legality of Stops subjective analysis of
  suspicion
• Analytic Models
• Causal Modeling
• Systemic or Equilibrium Modeling

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The Evidence NYC Study
Source Gelman, Fagan and Kiss, in press
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Source Gelman, Fagan and Kiss, in press
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Constitutionality of Stops and Searches
TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATEDCITYWIDE SAMPLE TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATEDCITYWIDE SAMPLE TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATEDCITYWIDE SAMPLE TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATEDCITYWIDE SAMPLE TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATEDCITYWIDE SAMPLE TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATEDCITYWIDE SAMPLE TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATEDCITYWIDE SAMPLE
    RACE OF PERSON STOPPED RACE OF PERSON STOPPED RACE OF PERSON STOPPED RACE OF PERSON STOPPED Total
    Black Hispanic White Other Total
Facts, as stated, articulatereasonable suspicion CountRow Column   117255.464.3 69032.665.4 1929.160.4 602.869.8 2114100.064.4
Facts, as stated, do notarticulate reasonable suspicion CountRow Column   28161.215.4 13329.012.6 367.811.3 92.010.5 459100.014.0
Insufficient Information CountRow Column   37052.220.3 23232.722.0 9012.728.3 172.419.8 709100.021.6
Total CountRow Column   182355.5100 105532.1100 3189.7100 862.6100 3282100100
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Evidence MD Highway Study
Source Katherine Barnes, Efficacy of Drug
Interdiction, Duke L. J. (in press)
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Is Profiling Really Just a Search for Efficiency?
Source Katherine Barnes, Efficacy of Drug
Interdiction, Duke L. J. (in press)
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Source Katherine Barnes, Efficacy of Drug
Interdiction, Duke L. J. (in press)
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Source Katherine Barnes, Efficacy of Drug
Interdiction, Duke L. J. (in press)
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Engines of Profiling

• Formation of Suspicion (Alpert research)
• Cues, Signaling, Disorder
• Implicit Attributional Bias (Banaji research)
• Stereotyping -- http//projectimplicit.net/nosek/i
  at/
• Primed Behavior (Graham research)
• Institutional Narrowing
• Reinforcement of cognitive schema through
  organizational preferences
• McFaddens knowledge
• Attributions of meaning to interactions, places
• Role of Law in Shaping Institutional and
  Individual Behavior?

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Remedying Racial Profiling

• Litigation see Daniels requirements
• Data
• Transparency via Information Massing
• Accountability
• Compliance
• Identification and sanctions of violators
• Modifying Institutional Norms