Racial ProfilingRacial Profiling

March 29, 2006March 29, 2006

March 27, 2000

Race as a Marker of Crime in Race as a Marker of Crime in LawLaw

Yick Wo v. HopkinsYick Wo v. Hopkins, 118 U.S. 356 (1886) – , 118 U.S. 356 (1886) – Immigrant exclusionImmigrant exclusion

Harrison Act, Ch. 1, 38 Stat. 785 (1914) – Harrison Act, Ch. 1, 38 Stat. 785 (1914) – Drug ProhibitionDrug Prohibition

Korematsu v. United StatesKorematsu v. United States, 323 U.S. 214 , 323 U.S. 214 (1944) – Japanese Internment(1944) – Japanese Internment

Terry’sTerry’s Lost Racial Narrative Lost Racial Narrative Papachristou v. City of JacksonvillePapachristou v. City of Jacksonville, 405 , 405

U.S. 156 (1972) - loiteringU.S. 156 (1972) - loitering U.S. v. HarveyU.S. v. Harvey, 16 F.3d 109, 115 (6th Cir. , 16 F.3d 109, 115 (6th Cir.

1994) – drug courier profile1994) – drug courier profile Charles Stuart Stops in Boston – precursor Charles Stuart Stops in Boston – precursor

to to Brown v OneontaBrown v Oneonta

Reinforcing CasesReinforcing Cases U.S. v Brignoni-PonceU.S. v Brignoni-Ponce (422 U.S. 873, 1975) – (422 U.S. 873, 1975) –

immigration and vehicle searches immigration and vehicle searches ““Profiles cease to become profiles when they become Profiles cease to become profiles when they become

common knowledge” – US Border Patrol agentcommon knowledge” – US Border Patrol agent Martinez-FuerteMartinez-Fuerte (428 U.S. 543, 1976) - border (428 U.S. 543, 1976) - border US v LopezUS v Lopez (328 F.Supp.1077, 1971) – airline (328 F.Supp.1077, 1971) – airline State v OchoaState v Ochoa (112 Ariz. 582, 544 P.2d. 1097, (112 Ariz. 582, 544 P.2d. 1097,

1976) – stolen cars1976) – stolen cars U.S. v MendenhallU.S. v Mendenhall (446 U.S. 544, 1980) – airline (446 U.S. 544, 1980) – airline

and drugsand drugs U.S. v SokolowU.S. v Sokolow (490 U.S. 1, 1989) – airline and (490 U.S. 1, 1989) – airline and

drugsdrugs Whren v USWhren v US, 517 U.S. 806 (1996) – drugs and cars, 517 U.S. 806 (1996) – drugs and cars Brown v OneontaBrown v Oneonta – racial profile of suspect – racial profile of suspect Illinois v WardlowIllinois v Wardlow (528 U . S . 119 , 2000) – (528 U . S . 119 , 2000) –

neighborhood as indicia of crimeneighborhood as indicia of crime

Reinforcing PoliciesReinforcing Policies Border patrol, cited in Border patrol, cited in Brignoni-PonceBrignoni-Ponce ““Computer Assisted Profiling System” Computer Assisted Profiling System”

(CAPS). (See Act Oct. 9, 1996, P.L. 104-(CAPS). (See Act Oct. 9, 1996, P.L. 104-264, Title III, § 307, 110 Stat. 3252)264, Title III, § 307, 110 Stat. 3252)

Operation Pipeline: DEA profiling Operation Pipeline: DEA profiling strategy, strategy, http://www.usdoj.gov/dea/programs/pipehttp://www.usdoj.gov/dea/programs/pipecon.htmcon.htm

Broken Windows – Targeting “Disorder”Broken Windows – Targeting “Disorder”

Is This Racial Profiling?Is This Racial Profiling? Gross and Livingston: “’Racial profiling’ occurs Gross and Livingston: “’Racial profiling’ occurs

whenever a law enforcement officer questions, whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a stops, arrests, searches, or otherwise investigates a person because the officer believes that members person because the officer believes that members of that person's racial or ethnic group are more of that person's racial or ethnic group are more likely than the population at large to commit the likely than the population at large to commit the sort of crime the officer is investigating…..If the sort of crime the officer is investigating…..If the officer's conduct is based at least in part on such a officer's conduct is based at least in part on such a general racial or ethnic judgment, it does not matter general racial or ethnic judgment, it does not matter if she uses other criteria as well in deciding on her if she uses other criteria as well in deciding on her course of action..”course of action..”

See, also, Deborah Ramirez et al., A Resource Guide See, also, Deborah Ramirez et al., A Resource Guide on Racial Profiling Data Collection Systems (Nov. on Racial Profiling Data Collection Systems (Nov. 2000) at 2000) at http://www.usdoj.gov/cops/pdf/cp_resources/pubs_prhttp://www.usdoj.gov/cops/pdf/cp_resources/pubs_prod/police_practicesod/police_practices_ handout/Section6.pdf _ handout/Section6.pdf

Litigation ResponsesLitigation Responses Racial ProfilingRacial Profiling

United States v. New Jersey, No. 99-5970 (D. N.J. December 30, 1999) United States v. New Jersey, No. 99-5970 (D. N.J. December 30, 1999) (consent decree entered); (consent decree entered);

Memorandum of Agreement, Between the USDOJ, Montgomery Memorandum of Agreement, Between the USDOJ, Montgomery County (MD) Department of Police, and the Fraternal Order of Police, County (MD) Department of Police, and the Fraternal Order of Police, Montgomery County Lodge 35, Inc., January 14, 2000, Montgomery County Lodge 35, Inc., January 14, 2000, http//www.usdoj.gov/crt/cor/Pubs/mcagrmt.htm, visited December 5, http//www.usdoj.gov/crt/cor/Pubs/mcagrmt.htm, visited December 5, 2000; 2000;

United States v. City of Los Angeles, No. 00-11769 (C.D. California) United States v. City of Los Angeles, No. 00-11769 (C.D. California) (consent decreed)(consent decreed)

See, also, See, also, http://www.racialprofilinganalysis.neu.edu/legislation/doj.phphttp://www.racialprofilinganalysis.neu.edu/legislation/doj.php

Hybrid Claims (Use of Force and Racial Profiling)Hybrid Claims (Use of Force and Racial Profiling) United States v. City of Pittsburgh, 97-0354 (W.D. Pa. Apr. 16, 1997) United States v. City of Pittsburgh, 97-0354 (W.D. Pa. Apr. 16, 1997)

(consent decree entered) (consent decree entered) United States v. City of Steubenville, C2-97-966 (S.D. Ohio Sept. 3, United States v. City of Steubenville, C2-97-966 (S.D. Ohio Sept. 3,

1997) (consent decree entered), 1997) (consent decree entered), http://usdoj.gov/cit/split/documents/steubensa.htm; http://usdoj.gov/cit/split/documents/steubensa.htm;

In re Cincinnati Policing, , C-1-99-317 (S.D.Ohio 2002), (S.D.Ohio 2002), http://www.usdoj.gov/crt/split/Cincmoafinal.htmhttp://www.usdoj.gov/crt/split/Cincmoafinal.htm

United States v. Highland Park (IL), United States v. Highland Park (IL), 00-C-421200-C-4212 (2001), (2001), http://http://www.usdoj.gov/crt/split/documents/Highland_MA.htmwww.usdoj.gov/crt/split/documents/Highland_MA.htm

Legal ClaimsLegal Claims Not very complexNot very complex

Intersection of 4Intersection of 4thth and 14 and 14thth Amendments Amendments 42 U.S.C. §1983, 42 U.S.C. §1414142 U.S.C. §1983, 42 U.S.C. §14141

44thth Amendment Amendment Reasonable suspicion that “…criminal activity Reasonable suspicion that “…criminal activity

is afoot” … “based on experience, is afoot” … “based on experience, observations, and/or information from others”observations, and/or information from others”

Suspect can be briefly detained “by means of Suspect can be briefly detained “by means of physical force or by show of authority”physical force or by show of authority”

Frisk is an easy path once a stop is effectedFrisk is an easy path once a stop is effected See See People v. DeBouerPeople v. DeBouer for details on for details on

controlling law in NYScontrolling law in NYS

1414thth Amendment Amendment Race alone cannot justify intrusion Race alone cannot justify intrusion

((Daniels et alDaniels et al)) Race is part of suspect description can Race is part of suspect description can

justify a stop (justify a stop (Brown v OneontaBrown v Oneonta)) Race cannot be a basis of reasonable Race cannot be a basis of reasonable

suspicion apart from another factor (suspicion apart from another factor (US US v Whren, US v Whren, US v. Brignoni-Poncev. Brignoni-Ponce))

What Signals Suspicion?What Signals Suspicion? Easier to say what doesn’t legally signal Easier to say what doesn’t legally signal

suspicionsuspicion Bulge in waistbandBulge in waistband Refusal to identify yourselfRefusal to identify yourself NervousnessNervousness Flight (see Flight (see WardlowWardlow)) LocationLocation Suspicious companionsSuspicious companions

Highway Context? Highway Context? ““Hard Driving”Hard Driving” Vehicle profiling, Driver/vehicle profilingVehicle profiling, Driver/vehicle profiling

Standards of ProofStandards of Proof Disparate ImpactDisparate Impact v. v. Individualized Individualized

DiscriminationDiscrimination standards complicate standards complicate 1414thth Amendment analysis, easier path Amendment analysis, easier path to either marry 4to either marry 4thth and 14 and 14thth or pursue or pursue action based on 4action based on 4thth amendment alone amendment alone

See, Ian Ayres, See, Ian Ayres, Pervasive PrejudicePervasive Prejudice (2002)(2002)

What standard?What standard? Disparate impactDisparate impact ““But for race…..”But for race…..”

Research ChallengesResearch Challenges Street Stops and Highway Stops require Street Stops and Highway Stops require

different measures of the same data, but different measures of the same data, but with different validity and conceptual with different validity and conceptual challengeschallenges

Street StopsStreet Stops Have to index stop rate to crime rate, not Have to index stop rate to crime rate, not

population ratepopulation rate What is base rate of crime? How measured? What is base rate of crime? How measured?

Rate per population index, but what population? Rate per population index, but what population? Daytime versus nighttime estimates?Daytime versus nighttime estimates?

Separate estimates by type of crime, since Separate estimates by type of crime, since rationales varyrationales vary

Time of day? Day of week?Time of day? Day of week? Highway StopsHighway Stops

Similar issues, though race-specific violation Similar issues, though race-specific violation rates are harder to determinerates are harder to determine

Estimating the Base RateEstimating the Base Rate Street StopsStreet Stops

UK Strategy (UK Strategy (www.www.homeofficehomeoffice.gov..gov.ukuk/rds/policerspubs1.html/rds/policerspubs1.html))

NYC Strategy (use crime rates in previous years)NYC Strategy (use crime rates in previous years) Highway Stops (observational strategies)Highway Stops (observational strategies)

Data Collection for StopsData Collection for Stops Compliance issuesCompliance issues Accuracy issuesAccuracy issues

Understanding InteractionsUnderstanding Interactions Who is selected for stops? Why?Who is selected for stops? Why? Who is asked for consensual search? Why?Who is asked for consensual search? Why? The Legality of Stops – subjective analysis of “suspicion”The Legality of Stops – subjective analysis of “suspicion”

Analytic ModelsAnalytic Models Causal ModelingCausal Modeling Systemic or Equilibrium ModelingSystemic or Equilibrium Modeling

Research StrategiesResearch Strategies

The Evidence: NYC StudyThe Evidence: NYC Study

Source: Gelman, Fagan and Kiss, in press

Source: Gelman, Fagan and Kiss, in press

TABLE II.B.4.ALL STOPS FOR WHICH A UF-250 FORM WAS MANDATED

CITYWIDE SAMPLE

  RACE OF PERSON STOPPED

TotalBlack Hispanic White Other

Facts, as stated, articulatereasonable suspicion

CountRow %Column % 

117255.4%64.3%

69032.6%65.4%

1929.1%

60.4%

602.8%

69.8%

2114100.0%

64.4%

Facts, as stated, do notarticulate reasonable suspicion

CountRow %Column % 

28161.2%15.4%

13329.0%12.6%

367.8%

11.3%

92.0%

10.5%

459100.0%

14.0%

Insufficient Information

CountRow %Column % 

37052.2%20.3%

23232.7%22.0%

9012.7%28.3%

172.4%

19.8%

709100.0%

21.6%

Total

CountRow %Column % 

182355.5%100%

105532.1%100%

3189.7%100%

862.6%100%

3282100%100%

Constitutionality of Stops and Searches

Evidence – MD Highway Evidence – MD Highway StudyStudy

Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

Is Profiling Really Just a Search for Efficiency?

Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

Engines of ProfilingEngines of Profiling Formation of Suspicion (Alpert research)Formation of Suspicion (Alpert research)

Cues, Signaling, DisorderCues, Signaling, Disorder Implicit Attributional Bias (Banaji research)Implicit Attributional Bias (Banaji research)

StereotypingStereotyping Primed Behavior (Graham research)Primed Behavior (Graham research) Institutional NarrowingInstitutional Narrowing

Reinforcement of cognitive schema through Reinforcement of cognitive schema through organizational preferencesorganizational preferences

McFadden’s “knowledge”McFadden’s “knowledge” Attributions of meaning to interactions, placesAttributions of meaning to interactions, places

Role of Law in Shaping Institutional and Role of Law in Shaping Institutional and Individual Behavior?Individual Behavior?

Remedying Racial Remedying Racial ProfilingProfiling

Litigation – see Litigation – see DanielsDaniels requirements requirements DataData

Transparency via Information Transparency via Information MassingMassing

AccountabilityAccountability ComplianceCompliance Identification and sanctions of violatorsIdentification and sanctions of violators

Modifying Institutional NormsModifying Institutional Norms