Law, Social Science, and Racial Profiling

• DOI: 10.3818/JRP.4.1.2002.103
• Published date: 01 December 2002
• Author: Jeffrey Fagan
• Date: 01 December 2002
• Subject Matter: Article

Law, Social Science, and Racial Profiling • 103

*Law, Social Science, and

Racial Profiling

Jeffrey Fagan

Columbia University

School of Law

JUSTICE RESEARCH AND POLICY, Vol. 4, Special Issue, Fall 2002

© 2002 Justice Research and Statistics Association

*Abstract

The term “racial profiling” describes race-based selection of citizens for interdiction

by police and other legal actors. Several studies have examined whether police dis-

proportionately stop minority citizens both in cars and on foot, and, once stopped,

whether police are more likely to search or arrest them. Whether these contacts are

racially motivated has been the focus of research, litigation, political mobilization,

and internal scrutiny by police departments. This article reviews definitions of prac-

tices that are commonly described as racial profiling, contrasts these narrow views

with the more complex legal standards that have evolved in case law, and assesses

whether recent data collection efforts can generate reliable information about the

extent and nature of racially disproportionate police contacts with citizens. Data

analysis procedures are identified to respond to both legal and normative questions

about whether racial disparities in police stops and searches rise to the level of “pro-

filing” and cross the threshold of a violation of constitutional guarantees. The article

concludes with a brief discussion of mechanisms for regulating and monitoring

police-citizen contacts to address concerns of police and citizens on the racial dimen-

sions of policing.

This article is based on a paper prepared for the National Research Council, Division of

Behavioral and Social Sciences and Education, Committee on Law and Justice, Meeting

of the Committee to Review Research on Police Policy and Practices, Washington, DC,

April 11, 2002.

104 • Justice Research and Policy

In the late 1990s, the deaths or shootings of African-American citizens during

encounters with police focused national attention on the practice of “racial pro-

filing” by law enforcement officials. The fact that police pay more attention to

non-whites was hardly news to most non-white Americans. Close surveillance by

police has always been a part of everyday life for American minorities, especially

African-Americans (Kennedy, 1997). More broadly, the use of race as an indicia

of criminality also is hardly new.1 A recent Gallup poll showed that majorities of

Americans of both races believe racial profiling is a problem.2 The reality of

intensive police surveillance of minority citizens—especially persons of African

descent—is no secret either to law enforcement officials, rank-and-file officers,

or to minority citizens. What was surprising was revelations of the extent to

which this intensive surveillance and interdiction of minorities was tolerated and

condoned by police officials, and ingrained in police practice and organizational

norms (see, for example, Veneiro, 19993; Goldberg, 1999).

Responding to both litigation and popular concern, several recent studies

confirmed that police disproportionately stop minority citizens, and, once stopped,

are more likely to search or arrest them (Cole, 1999; Harris, 1999, 2002).

Racially disproportionate stops and searches by police take place in a wide range

of everyday citizen transactions and movements: highway and local traffic stops,

upon departure and arrival at both domestic and international air terminals, on

intercity trains and buses, in shopping malls and private stores, at the borders

with Canada and Mexico, on street corners in neighborhoods known for crime

or gang activity, and in routine pedestrian travels (see, for example, Langan,

Greenfeld, Smith, Durose, & Levin, 2001).

Whether these contacts are racially motivated is a hotly contested question

that has been the focus of public and private litigation, political mobilization,

1 Examples include: immigration exclusion and other discrimination against Chinese

immigrants in the 19th century (Yick Wo v. Hopkins, 118 U.S. 356, 1886); the racialized

debate on the Harrison Act criminalizing heroin and cocaine in 1913 (Musto, 1973); the

internment of the Japanese during World War II (Koramatsu v. United States, 323 U.S.

214, 1944); border interdictions to halt illegal immigration (U.S. v. Martinez-Fuerte, 428

U.S. 543, 1976); the racial components of drug courier profiling (U.S. v. Harvey, 16F.3d

109, 115, 6th Cir. 1994); and the so-called “Carol Stuart” stops in Boston (Massachusetts

Attorney General, 1990).

2 Associated Press, Poll Finds Most in U.S. Believe Police Practice “Racial Profiling,”

Chicago Tribune, Dec. 11, 1999, p. 15 (describing results of a Gallup poll in which a

majority of Americans believed that racial profiling is widespread and three fourths of

black men said they have been stopped by police because of their race).

3 Veneiro admitted that New Jersey State Police officers engaged in racial profiling,

but also that profiling is part of the culture of the State Police.