Tuesday, November 09, 2004

Racial profiling in the United States: Is Justice Blind?

The most important problem facing law enforcement today is the issue of Racial Profiling. Statistics do not lie and neither do radical changes in social order. Not since the 1960s has the country been closer to the brink of a race war. Rodney King and the subsequent acquittals of police officers, the O.J. Simpson trial, and recent riots in cities such as Cincinnati all have one common theme: a distrust of law enforcement officials by urban residents. Throughout the course of my research I have come across facts that continually support the belief that race is one of the most important factors in the justice system. Essentially the reason for this disparity is the conditioning that police officers have been subjected to for years. This conditioning in turn spawned a mental picture of what an offender is, this picture soon became the scapegoat of our entire society. Certain individuals deny that racial profiling is a reality and if they do acknowledge its’ existence they argue that it is impossible to stop. These myths need to be debunked, because this unequal enforcement of justice makes a farce of everything the United States stands for.

Dred Scott was the first well known supreme court case that reaffirmed the law that African-Americans are less than human. In this case a slave went to the north and returned to the south, filed a court case for his freedom and was turned down by the courts. This court decision basically said once a slave always a slave, today historians blame it on being sensitive to the southerners. It was basically the next logical step for a constitution guaranteeing equality and a policy that guarantees inequality. The next landmark decision was Homer Adolph Plessy v. The State of Louisiana, this decision decided that Jim Crow laws were in fact constitutional. Homer Plessy was an individual who was 1/8th African and was forced to sit in the “Colored” car. He filed a court case arguing for equality, since the train did not leave Louisina, it did not fit in to the strict definition the court had at the time of federalism, so judge Ferguson felt that there was not a violation. The court needed to give all citizens equality in the public realm, but it also needed to reaffirm the widely held belief that African-Americans were less than human. The court accomplished this by instituting the “separate but equal” era of race policy. The separate part of this phrase became much more important than the equal facet. Schools, restaurants, and restrooms were divided between white and colored. These facilities existed before the Plessy decision in 1896, but the decision essentially legitimizes the practice. This era lasted for 60 years until the Brown vs. Board of education decision. This period of time is incredibly important in understanding our current racial problems. This long period of time which was only a few generations ago, built in to the collective American psyche an image that African-Americans are less than a white American. Most importantly that they are bestial and dirty, therefore they could not use public swimming pools or a white person’s water fountain. These are not light ideologies, to fuel these beliefs there must be a healthy dose of dehumanizing. Lynchings were still happening in the south and beatings of African-Americans was very common.
About 50 years ago, in 1954 the Supreme Court decided in Brown v. Board of Education that public schools had to be integrated. One could argue this is the single most important supreme court case since Marbury v. Madison. For people in the south this was a 180 degree turn around and for people in the north it was a massive change from the status quo. In the decade that is known for its resistance to change and the image of the stereotypical white nuclear suburban family. Brown v. Board had a tough time being enforced, but the executive branch did its’ best to enforce it. When Governor Wallace declared “…segregation forever!” and attempted to block African-American students from entering the University, the National Guard was sent to enforce the court decision.
The court also brought in to focus an important issue when it came to segregation. The difference between De Facto and De Jure segregation. De Jure is segregation required by the law, while De Facto segregation is the unintended result of environmental and social factors. By deciding Brown v. Board the court basically destroyed De Jure segregation. An issue that then became very important was busing to fight against De Facto segregation, there are many problems with busing itself and there are probably better ways to stop De Facto segregation. The government at least was not upholding the inequality that was mandated by the Plessy decision.

The time after Brown v. Board is widely referred to as the Civil Rights Era. Between this time and 1964 there was a great deal of social change. An important thing to remember is social change is a long, incremental, and nearly impossible thing to accomplish. People are very resistant to change especially when they had been conditioned since their birth that not only were Blacks less than human, but the supreme court recognizes and agrees with this! It was unheard of for a black woman to refuse to sit in the back of the bus and even more unheard of for white people to travel with blacks fighting for civil rights. The remnants of the ku klux klan and southern law enforcement officers worked together to deny blacks their civil rights. At least that is all they were charged with, because all trials against murderers, bombers, and conspirators were decided by an all white, all male jury. These individuals for the most part agreed with the individuals who had committed these heinous acts, because they had been conditioned in the same way. People walked free, the most famous of these incidents is the murder of three freedom riders. Two white males and one black male, had been traveling on integrated bus lines to make sure it was truly integrated. These individuals were dragged out of the car and murdered by Klan members. This resistance to change is very important in understanding our current problem with racial profiling.
In 1964 the civil rights act was passed, essentially the legislative follow up to the Brown v. Board decision and the activists creating social change. This era is important because there has not been a significant court or legislative action dealing with race since then. The closest is the Whren decision which said it was ok to use race as a factor in policing as long as it is not the only factor(Cox Cohan). As Richard Bennet explained to us, the incarceration rate has been steadily increasing at a much faster rate than before. The point of origin for this phenomenon was the 1964 civil rights act. As Bennet argued I began to formulate a hypothesis. These rights were not given to minorities, instead they had been withheld for countless years in basic violation of our constitution. Since being withheld for countless years(you only have to look back 150 years for slavery) our culture has been conditioned to think of African-Americans as lesser beings. The Plessy decision just codified this belief and Brown v. Board all of a sudden told the public everything they knew and had been told was wrong. So after equal rights were guaranteed to be enforced by the federal government, this “group” of “Coloreds” became a group undesirable to society, but it was unlawful to act on this belief. This is the state of America’s collective psyche today.

Since the Civil Rights Act the incarceration rate has steadily increased, compared to its relatively stable pre-1964 rate(Bennet). The people in power needed something to keep those slaves from becoming equal. Far from a rational decision, it become a common psychological reaction to label this group criminals or to at least imagine criminals as looking a certain way.
“…racial profiling doesn’t happen because data justifies the practice but rather because those with power are able to get away with it, and find it functional to do so as a mechanism of social control over those who are less powerful. By typifying certain ‘others’ as dangerous or undesirable,those seeking to maintain divisions between people whose economic and social interests are actually quitesimilar can successfully maintain those cleavages.(Wise)”

The ruling class in this case is White America and the dangerous undesirable group is former slaves. After so many years of being told that the reason they treated this group of people like trash, is because they were animals like dogs and cats. Now all of a sudden these “animals” are equal to them in the eyes of the law. Either one can understand they themselves are evil for treating human beings like animals or they can understand that this group is still less than human and the government is wrong. Now one can easily understand, which entity is it easier to blame this on: yourself or the government? It is obviously that faceless entity known as the government, so racism survives, to be taught to the next generation(Greenblatt).
The police are just a random sampling of the population with a few qualifications: for the most part these individuals come from working or middle class families and many have relatives that were law enforcement officers. So policemen are being told by others before the civil rights act, before Brown v. Board, and even before Plessy that Blacks were less than human. This conditioning does not all of a sudden stop when the government says that it is not true. The thing that was greatly cut down on were terrorist actions, like the bombing of the 16th street Baptist church in Birmingham Now discrimination in jobs were illegal, where could this shared value of racism go? The answer is law enforcement, although today I do consider racial profiling racist, I do not consider the policemen who profile racist. It is simple, if one is discriminated in a job or if they are beaten for being black, that individual simply brings the issue to court. For a victim of racial profiling, you are already a criminal, you cannot say you were discriminated against, because no one will listen. So it happens once, twice, and soon it becomes a common practice. After many years the public and police begin to have a picture of what a criminal looks like. Understanding the root causes of racial profiling helps us understand the problem we face today, because we have seen a long line of improvements in the quest for equal protection under the law. Also the important thing to understand is that we all share responsibility, so it makes the problem hard to accept.

Many individuals seem to have a perception of racial profiling that it probably exists, but only in specific areas like the south or large cities. The truth is that all across our country there is a disproportionately large amount of minorities arrested(as well as searched), convicted, and incarcerated.
“His office investigated the issue for four months before he officially admitted that New Jersey state troopers were regularly engaging in racial profiling. The office also acknowledged that although the racial profiling issue has gained state and national attention, the underlying conditions that foster disparate treatment of minorities have existed for decades…The report found that the problem of racial profiling was real, and not simply imagined.(Meeks)”


The most noticeable difference is in drug possession crimes. African-Americans make up 12% of the U.S. population and 13% of monthly drug users. Well this is to be expected for the proportion of drug use to fluctuate a few points around its’ proportion to the general population. So one would expect that the rate of arrests, convictions, and incarcerations would go back and forth between 6% and 20%. Well it turns out 35% of drug arrests are African-Americans. Maybe for some reason there is just a few more drug users per capita that are African-American that the survey missed in the monthly drug users. Now the next step in the justice process the verdict, at this step in the process African-Americans make up 55% of those convicted of drug possession. Now the judges turn, they have justice in mind, they’ll keep drug users out of jail and in treatment programs so they can rid themselves of their addiction. It turns out African-Americans make up 74% of those incarcerated for drug possession(Walker). At the point of the proportin of drug arrests one may think its just a little bit not to bad a violation, but by the time one understands that 74% of people incarcerated for drugs are African-American we must understand that this problem is pervasive.
Some people argue that minorities are disproportionately distributing drugs or that minorities are impoverished so they have to resort to a life of crime. These are hindsight justifications, the truth is that even if minorities were disproportionately distributing drugs how could they make up 74% of people who possess drugs when they are 12% of the population, this is basically an assumption that all young black males are drug users. This assumption is faulty, because the evidence shows they are only 13% of monthly drug users(Walker). The argument that poverty creates an environment in which crime is the easy way out is true. Crime is a short term answer to poverty, but I know that most impoverished individuals whatever race work very hard to keep their head above water. To assume that a child born in a poverty stricken neighborhood will end up a criminal is not logical. Also to assume that minorities come from impoverished areas is in itself ignorant and prejudiced. As we have seen no matter what social standing a person comes from if they are a minority they are treated negatively by the justice system(Ramirez).
One example of this is what people call DWB, or Driving While Black. In a case the ACLU took, a black prosecutor was driving back to Washington DC after attending a funeral with his family. He was in a hurry to make a trial the next day. He was pulled over in the rain and asked if he would submit to a search. The driver stated that he knew his rights and did not want his car searched. The family was forced to wait there as they brought a drug dog to sniff out the car. As their car was searched the family stood out in the rain. When the attorney arrived in his office he called the ACLU and they filed a case against the police(Meeks). The case led to document that had been circulating among the police that there were lots of drug shipments going through their highway and the perpetrators are usually black and usually in a rent-a-car(Jost). Well the attorney was black and he was in a rent-a-car, but to everyone’s astonishment he was not a drug smuggler. This is just one isolated incident, but if one looks at the ACLU site it quickly becomes obvious that there are cases filed in many states. Although some of them may be exaggerated or simply not true, some of them are true and give us a glimpse in to what it feels like to be singled out and intimidated because of your race.
A recent study found that 9 out of 10 individuals incarcerated in Maryland on drug offenses are African-American(JPI). Also on any given day 42% of African-American men age 18-35 in Washington DC are under the control of the justice system. This is defined as being either on probation, parole, in jail, or in prison. Also one-sixth of African-American men(defined as over age 16) are arrested each year(Walker). The disparity is not only in drug crimes either, African-Americans make up half of all state and federal prisoners. They also make up two-thirds of federal prisoners incarcerated for drugs(Walker).
Certain people think that the racism within the system is a myth. That in actuality it is polices that ranking officers have their officers follow(Fredrickson). For instance to order officers to pull over black people driving rent-a-cars, because they have arrested some black people driving rent-a-cars for drug possession. Some argue this is good policing, like crime mapping you can pick up a pattern. They don’t think of it as racial profiling, it just makes sense. The truth is just because 13 of the 16 hijackers on 9/11 were Saudi Arabian and all 16 were Muslim, does not mean that we should search Saudi Muslims a lot more than other individuals when boarding planes. This seems rational because its based on empirical analysis, but instead it puts us more at risk. If law enforcement is too busy searching innocent minorities for drugs and airport security officers are too busy searching innocent Muslims for shoe bombs, no one is catching the real criminals. This is the primary effect that racial profiling has on the justice system in the United States. By focusing on individuals because of their race we are not incarcerating those dangerous to society, we’re incarcerating a race of people. By letting through the criminals everyone in society is endangered by racial profiling.
The secondary effect of Racial Profiling is alienation of the group that is affected. Minorities become dehumanized just as badly if not worse than having to sit on the back of the bus or not eat at lunch counters. With family and friends being searched illegally. Then disproportionately arrested, convicted, and incarcerated its easy to understand the justice system has marginalized this group. Beyond the statistical facts and personal experiences with the justice system, there is the media. The O.J. Simpson trial, the Rodney King beating and subsequent acquittal, and the recent beating in Cincinnati that left a man dead these all create and fuel a perception of the justice system. People who are affected by these tragedies respond in anger, rioting and destroying their own neighborhoods. Many individuals of all races have let the media frame racial profiling without understanding the facts(Lamberth). These very few highly publicized cases convince skeptics that racial profiling is a myth created by the media and convince people who believe in racial profiling that incidents are much more violent than usual. This is interesting because increased perception seems to polarize opinions on racial profiling, when it should unite them. The answer to this in my opinion is to use less sensationalism when covering these stories, to see it as a symptom of the larger problem of racial profiling and not just a fluke.


The newest form of Racial Profiling involves Muslims. This specifically deals with airport security and suspension of habeas corpus. Since the attacks on 9/11 airport security has become controlled by the military. They are operating under orders to look for suspicious persons, since the mental picture of what a hijacker looks like is already ingrained in them, the look for a certain type of person. This person usually wears a cloth on their head, has a certain skin color, and maybe even an accent. Also American citizens detained in Guantanimo bay without being given access to an attorney or communication with their families. These people are held there specifically because they are Muslim and are suspected of knowing certain people. This is fine to arrest and change someone with a crime, but to imprison these people with the term “Enemy Combatants” is a stretch. It becomes obvious that this policy is tilted when one sees that virtually all the prisoners are Muslim. Also racial profiling affects other minorities like Latinos, as it turns out 30% of federal mandatory minimums are given to Latinos(FAMM). Also from many peoples experiences we can understand racial profiling can work in reverse. When a Caucasian is driving in a neighborhood the law enforcement perceive to be a “minority” neighborhood, they are pulled over on the basis of race. The assumption is for the most part based on drug searches.

Now we understand that racial profiling is pervasive, we understand it affects every race, and we know that this problem is exacerbated by drug war policies and media sensationalism. We have a basic understanding of racism in the United States and a recognition that racism has survived.
Many individuals are resistant to the idea of racial profiling, because they feel it scapegoats law enforcement for a societal problem they aren’t responsible for. These individuals are right and wrong. To scapegoat law enforcement officers is wrong and sometimes these claims can come across that way, especially if they are unfounded claims(like many cases very well might be). The truth is law enforcement is responsible for the problem, but just as responsible as everyone else. The police commit small acts of disproportionate arresting, the public with juries commits a few more small acts of disproportionate convictions, and the judge comes down on minorities a little harder. All these subtle differences have a cumulative affect and create a horribly unbalanced justice system.
The people in the system are not racist, they are just products of social conditioning. We are all products of social conditioning, but many of us are not exposed to certain cultures. For instance the culture of law enforcement is very interesting. As Ronald Hampton discussed with us every different station has different values and objectives. Their superior officer gives them orders and they follow them. To lead to this disproportionate arrest rate the police in many jurisdictions must have a subtle shared value of what an offender looks like. These values are pieced together from training, experience, and being taught by previous generations of officers. With arrest rates for drug possession more than twice the rate of consumption for African-Americans this is the most rational explanation. Police officers are not racist, they have just been arresting blacks for so long they’ve created a self-fulfilling prophecy. Again even if they recognize their mistakes, there aren’t that many, just a little lopsided in the enforcement.
Many think that police are the number one problem in addressing racial profiling. The public and the judge are just as important though. Through the jury system, an offender is judged by his/her peers. They determine guilt and as the statistics in Samuel Walker’s book show us they are convicting a higher rate of black people than white people. These juries are samples of the population and are sometimes minorities themselves. As it turns out in society in general no matter what race you are, the conditioning exists to some degree that you believe a certain type of person commits certain types of crimes. Also these juries are viewing trials which are usually good prosecutors with their own future in mind and unskilled defenders, because the defendant can’t afford a better attorney. So they convict a little higher percentage than would be expected.
The judges then have a chance to balance the scales of justice. If more African-Americans are being sentenced why not give a larger percentage non-prison rehabilitation. The statistics don’t take a downturn though, instead they continue to rise. As the number finally becomes a whopping 74% of drug users incarcerated being African-American.
The problem does not rest squarely on any single entities shoulders. Instead the problem is ingrained in our culture and everyone is responsible. So how can such a huge problem ever be addressed?

The first step towards reducing Racial Profiling, is to have every station in the United States record the race of the people they pull over and search. If the current practices continue we will be able to pinpoint certain jurisdictions that use race as the most important factor in determining probable cause. This can lead to a federal lawsuit for violating people’s civil rights. If the current practices don’t continue, because people realize they are being monitored the problem will be solved at the law enforcement level. Frederick Taylor is an organizational theorist known for his popularizing of the theory of Scientific Management, which is a belief that there is a best way to manage any organization. Taylor did a study in the workplace and found out that the more he dimmed the lights the harder people worked, until it got too dark to work. When the study was done he concluded that the people had worked harder, simply because they knew they were being studied. I think that if a police officer is convinced not to search someone, because he is scared of legal repercussions, then that person was not worth searching. The collection of traffic stop/search/arrest data will lead to stricter enforcement of probable cause and eliminate the gap between the 14% of drug users are African-American and 35% of arrestees are African-American.

The next step has to deal with the jury and prosecutor. The convictions are a result of the prosecutors dropping a larger percentage of Caucasian drug cases and public perceptions of drug use. To reduce this disparity we must limit the prosecutorial discretion at some level. Many cases the prosecutor is convinced the person is bad and just throws counts at them to see what will stick. Also all jurors should be made aware of the disparity in conviction rates. This may help them look through their own conditioned prejudice.
For the judges these individuals already have a tight grasp of the law and should not be contributing to this disparity. Simply put these judges need to be aware that they are somehow incarcerating a much higher rate of African-Americans than Caucasians, especially for drug crimes. This may also be contributed to by mandatory minimums. Hurting the judge’s discretion, forcing incarceration for drug crimes instead of rehab(FAMM).

Racial Profiling is a symptom of a larger societal prejudice(Fagan). If we can reduce the disparity and set our goal to eliminate it completely we can cure this symptom. This is a positive step in insuring everyone equal protection under the law. Racial profiling should not be used to determine probable cause for searching or arresting. It does not matter if 100% of plane hijackers in history are Muslim, this does not justify violating the rights of every Muslim. Separate but equal is also not very long ago, we must remember that racism didn’t all of a sudden die in 1964, instead it became something under the surface. It is perpetuated by an unequal justice system and sometimes it boils over and leads to riots.
To catch the real criminals we must stop searching innocents, we must stop marginalizing racial groups with our law enforcement, and we have to accumulate data to gain a greater understanding of the problem. I myself have been conditioned throughout my lifetime, I try to remain open minded and look through the prejudice, obviously this can never happen.
Prejudice and racism will never cease existing, what we need to do is eliminate it from our government. This is a plausible goal and without reaching it I fear we may be taking steps backward in regards to civil rights. Simply put without justice there can be no peace. Racial disparity in the justice system is unjust and affects everyone no matter what race.





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