Beyond profiling: race, policing, and the drug war.

• Author: Banks, R. Richard

INTRODUCTION I. THE CAMPAIGN AGAINST RACIAL PROFILING A. Consensus and Data Collection B. The Innocence Emphasis C. The Irrationality Claim 1. Self-fulfilling prophecy and survey data claims 2. Hit rates argument II. THE AMBIGUITY OF THE EVIDENCE A. Limitations of Self-Fulfilling Prophecy and Survey Data Claims B. The Hit Rates--Crime Rates Disjunction C. Problems of Proof D. Judgments of Racial Profiling III. THE ABANDONMENT OF THE RACIAL PROFILING INQUIRY A. Rational Racial Profiling B. Problems Without Racial Profiling C. Racial Profiling Without Problems D. Beyond Profiling IV. THE SOCIAL HARMS OF INCARCERATION A. The Magnitude of Incarceration B. Neighborhood Effects C. Perceived Injustice D. The Meaning of Race V. THE APPEAL OF THE ANTIDISCRIMINATION CLAIM A. Discrimination B. Irrationality and Innocence CONCLUSION INTRODUCTION

The political consensus in opposition to racial profiling (1) in drug interdiction has fueled efforts to identify and eliminate the practice. (2) Some commentators have asserted that racial profiling does not help to apprehend criminal wrongdoers more efficiently because its premise of racial group differences in criminality is erroneous. These commentators suggest that racial profiling accounts for the widespread investigation and mistreatment of innocent blacks and Latinos. (3)

This Article aims to reorient debate about race, policing, and the drug war by critically examining the focus on racial profiling that burdens the innocent. I conclude that policymakers should abandon efforts to ferret out and eliminate racial profiling in drug interdiction. Instead, policy analyses should consider the race-related consequences of the drug war, without regard to whether officers engage in racial profiling. Given the high level of incarceration of disadvantaged racial minorities, those consequences would remain especially significant even if not one innocent person were investigated. (4) Although seemingly at odds with the campaign against racial profiling, I hope to show that my position is not only normatively compelling but also consistent with the concerns that animate much of the sentiment of the campaign against racial profiling.

The view that pervasive, irrational racial profiling invariably accounts for the widespread investigation of blacks and Latinos reflects a misreading of the empirical studies of law enforcement officers' stop-search practices. While the studies' findings do not refute the existence of irrational profiling, they are also consistent with the possibility that the extensive investigation of racial minorities reflects their higher rates of criminal activity, along with officers' rational use of racial profiling. (5) The empirical evidence is more ambiguous than some commentators have suggested. One reason, then, to abandon the racial profiling inquiry is that efforts to prove racial profiling will founder on empirical findings that invite contrary interpretations.

There are two additional reasons that policy reform should center on the drug war and its consequences rather than racial profiling. First, if officers engage in racial profiling because it helps them to apprehend drug traffickers, then efforts to eliminate the practice without reducing the incentives to apprehend drug traffickers may be futile or counterproductive. Second, the problems most commonly associated with racial profiling--the widespread investigation and mistreatment of racial minorities and the tension between racial minority communities and law enforcement agencies--do not necessarily turn on whether officers engage in racial profiling. These problems could persist in the absence of racial profiling or be meaningfully addressed without actually eliminating racial profiling.

Analyses should instead consider the race-related outcomes of the drug war, particularly the high level of incarceration of racial minorities. I highlight the social harms of incarceration rather than its potential benefits because those harms may be underappreciated in a debate centered on the wrongful investigation of the innocent. The racial concentration of incarceration may (1) undermine neighborhoods' stability, (2) impede effective law enforcement by bolstering minorities' distrust of the criminal justice system, and (3) intertwine race and crime in a way that fortifies the racial divide. These outcomes not only pose issues of distributional fairness, they may also increase aggregate social costs.

The extraordinary success of the campaign against racial profiling attests to the cultural resonance of antidiscrimination claims inflected by tropes of irrationality and innocence. The campaign against racial profiling has converted varied bases of drug war opposition and concerns about police treatment of minorities into a morally compelling and politically potent constitutional claim of discrimination. The irrationality claim establishes the unconstitutionality of racial profiling without imperiling the race-based affirmative action policies supported by many opponents of profiling. The focus on innocent, middle-class victims counters the stigmas of race and criminality that might otherwise have undercut the broad appeal of the campaign.

But the strategic usefulness of such an antidiscrimination claim (6) should not blind us to its potential inadequacy as a policy framework. (7) Efforts to eliminate discrimination often will fail to realize the goals that animate invocation of antidiscrimination rights. The assumption that most discrimination is irrational may understate the difficulty of identifying and eliminating discrimination and overstate the gains from doing so.

This Article has five parts. Part I describes the campaign against racial profiling. Part II reexamines the claim that racial profiling in drug interdiction is usually irrational. Part III justifies the abandonment of the racial profiling inquiry in favor of a focus on the consequences of drug policy and policing practices. Part IV sketches the social harms of the racial concentration of incarceration. Part V discusses the political appeal of the campaign against racial profiling.

1. THE CAMPAIGN AGAINST RACIAL PROFILING

   This Part recounts the success of the campaign against racial profiling, its focus on innocent, middle-class victims, and the claim that racial profiling is irrational because its premise of racial differences in criminality is erroneous.

   A. Consensus and Data Collection

   As a result of the campaign against racial profiling, law enforcement agencies and government officials now publicly disavow the practice. (8) Numerous jurisdictions have prohibited it, (9) as has the Bush Administration for federal law enforcement agencies. (10)

   Numerous studies of law enforcement officers' stop-search practices have been undertaken to document the extent of racial profiling. Extensive data collection efforts have resulted from lawsuits filed against the U. S. Customs Service (11) and against state troopers in Maryland (12) and New Jersey. (13) Although opposed by some law enforcement agencies, (14) data collection efforts are underway in a startling array of jurisdictions, (15) including the federal government. (16) Nearly all of the stop-search studies document the disproportionate (17) investigation of blacks and Latinos, (18) even in jurisdictions that have prohibited racial profiling. (19) Search rate disparities are typically more pronounced than stop rate disparities. (20)

   B. The Innocence Emphasis

   The media and civil rights groups have featured those victims of racial profiling and police mistreatment who are not only innocent, (21) but also respectable and middle class: (22) the Harvard-educated lawyer driving home from a relative's funeral who was detained on the highway in the freezing rain, (23) the military officer made to sit handcuffed in the police car while his young son watched, (24) the four young men on their way to a college basketball tryout who were stopped by police officers and nearly fatally wounded, without any evidence of wrongdoing. (25) Commentators have highlighted these sorts of sympathetic plaintiffs. (26)

   C. The Irrationality Claim

   A central claim of the campaign against racial profiling is the empirical one that racial profiling is unjustified because blacks and Latinos are no more likely than whites to commit drug crimes. (27) This argument takes three forms: the self-fulfilling prophecy claim, the survey data claim, and the hit rates argument. (28)

   1. Self-fulfilling prophecy and survey data claims.

      Law enforcement officers sometimes claim that racial disparities in rates of arrest and conviction for drug crimes simply correspond to differences in rates of criminal behavior. (29) As one commentator explains, "law enforcement officers believe minorities [are more likely than whites to] transport drugs because blacks and Hispanics are disproportionately arrested and convicted for narcotics offenses." (30) However, racial differences in rates of arrest and conviction do not necessarily imply racial differences in rates of offending. Because drug law enforcement is highly discretionary, rates of arrest and conviction reflect investigation and enforcement decisions as much as underlying rates of criminality. (31) The self-fulfilling prophecy argument reminds us that the outcomes often offered as the justification for racial profiling may, in fact, be the consequence of racial profiling, which can create the appearance of racial differences in criminality even when there are none. (32)

      The survey data argument contends that drug use rates are comparable across racial groups. Numerous commentators have rejected the possibility of substantial racial differences in drug crime on the basis of survey findings regarding rates of illicit drug use among various racial groups. (33)

   2. Hit rates argument.

      Often offered as confirmation of the survey data and self-fulfilling prophecy claims, (34) the hit rates argument...