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Racial and Ethnic Profiling in Policing and Counterterrorism

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Up with Chris Hayes, 10/30/2011Interview w/Glenn Greenwald, constitutional & civil rights litigator, and author of Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful

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The law was once a guarantor of a common set of rules for all, but over the past 4 decades, the principle of equality before the law has been effectively abolished, replaced by a two-tiered system of justice

The two-tiered justice system vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state e.g., War on Drugs, heightened immigration enforcement

and border security, heightened government surveillance and secrecy in the name of the War on Terror

Two-tiered justice system

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What distinguish the two “tiers”? Race? Ethnicity? Power? Wealth? Connections?

Greenwald suggests it’s about power There’s an elite-mass dichotomy Political and corporate elites have become

exempt from the rule of law in the United States▪ And this elite immunity is justified on the basis of

the common good, ‘the system,’ ‘the institution,’ etc.

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Alongside elite immunity, an ever harsher & more punishing system for ordinary Americans

US has 5% of world population but 25% of its prison population

The New Jim Crow: Mass Incarceration in the Age of Colorblindness (M. Alexander, 2010) and Slavery by Another Name (D. Blackmon, 2008) argue mass incarceration of blacks is parallel to enslavement and peonage laws

1 in 31 adults in US now in prison/jail or on probation/parole Correctional control rates are stratified by gender, race &

geography (Pew Center on the States, “1 in 31,” 2008): 1 in 18 men (5.5%) vs 1 in 89 women (1.1%) 1 in 11 black adults (9.2%); 1 in 27 Hispanic adults (3.7%);1 in 45 white adults (2.2

%) Rates even higher in some neighborhoods: in one block-group of Detroit’s East Side,

for example, 1 in 7 adult men (14.3%) is under correctional control Georgia, where it’s 1 in 13 adults, leads the top 5 states that also include Idaho,

Texas, Massachusetts, Ohio and the District of Columbia

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Race and PolicingCh. 45, Jim Leitzel (2001)

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Police in the US have presided over a significant decline in serious crime

Aggressive “quality of life” policing may be partly responsible for both drop in crime and improvements in public spaces since the 1990s – but successes are tarnished by ongoing controversy concerning the role of race in policing

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The use of racial profiling, not its abuse, is the fundamental problem

Even if all abuses associated with race-based policing could somehow be eliminated, racial profiling would remain a bad idea

Race-based policing is counterproductive: it leads to more crime, not less

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Racial disparities in policing exist – it would be surprising if they didn’t

Racial disparities in policing exist – since race is used as one of the indicators in criminal profiling

In private behavior, our actions are often based on group reputation - but good cops should not behave as good private citizens do

Police should, in general, not use race as a basis for deciding whom to watch, or after a crime, whom to question or arrest on grounds of suspicion

As in many other policy areas, the best long-term approach to crime control appears counterproductive in short run

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Costs of Race-Based Policing Effective crime control in a democracy requires

voluntary cooperation between police & citizenry Volunteer cooperation requires trust Race-based policing undermines trust Reduced trust means lessened deterrence of crime, as

minorities become unwilling to report crime 1/2 of serious crime in US is not reported Minority-police hostility creates unwillingness to testify at

trials and to convict defendants when serving on juries Lack of cooperation brought on by racial disparities in

policing reduces criminal deterrence Also provides positive inducements to disobey law, prevents

well-behaving minority youths from distinguishing selves from criminals, reducing incentive to be law-abiding

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“Pool of hostility” is the problem The problem isn’t “bad” or “racist” cops

in an otherwise workable system “Pool of hostility” and generalized

mistrust have been created by long-term numerous interactions b/w police & citizenry even “respectful” individual encounters are

just a drop in the bucket

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Race-based policing also harms police

Race-based policing may lead to parallel stereotyping of the police as insensitive to concerns of minorities, or as racist

Good and honest cops suffer the consequences of generalized mistrust

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In race-based policing, as in other policy areas, rational individual behavior does not serve the social good

Unconstrained individual incentives do not serve society’s interests w/respect to public goods Taxes, therefore, are not voluntary

Citizen hostility toward police is a “public bad,” and individual officers acting rationally, will supply too much of it in the aggregate

Unconstrained individual incentives do not serve society’s interests w/respect to “public bads” either

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In long run, there’s no trade-off b/w crime control & race-neutral policing

But rejection of race-based policing will not immediately reduce mistrust b/w police & minority communities It’s built up over a long time Reducing “sea of hostility” will take time

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“Criminal profiling vs. racial profiling,” Op-Ed (S. Dutta) LA Times

“True racial profiling,” in which people are targeted solely because of race or ethnicity, is both illegal and immoraldestroys public trust reduces police effectiveness

When officers follow leads and stop people, they do use criminal profiling, but it is profiling based on all actionable intelligence, which includes race as one of many criteria

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Are “cop-cams” a solution?Can they have an impact, if problems exist at institutional level?

Dutta argues that recording every police-citizen interaction would keep officers professional and greatly increase

conviction rates reduce expenses of the criminal justice system build trust in police-public relations

Officers have started using cop-cams, purchasing them with their own funds officers realize the protection video recordings

provide against false complaints

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“The Roots of Racial Profiling,” Reason (G. Callahan & W. Anderson, Aug/Sept 2001)

Callahan & Anderson use racial profiling to refer to the practice of stopping and inspecting people who are passing through public places—such as drivers on public highways or pedestrians in airports or urban areas—where the reason for the stop is a statistical profile of the detainee's race or ethnicity

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Racial profiling is fueled by War on DrugsDue to:1) difficulty in policing victimless crimes in

general and the resulting need for intrusive police techniques

2) greater relevance of this difficulty given the intensification of the drug war since the 1980s

3) additional incentive that asset forfeiture laws give police forces to seize money and property from suspects

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Evidence of racial profiling US Forest Service memo instructed park rangers at Mendocino

National Forest, CA:"to develop probable cause for stop...if a vehicle stop is conducted and no marijuana is located and the vehicle has Hispanics inside, at a minimum we would like all individuals FI'd [field interrogated]."

76% of motorists stopped on 50-miles of I-95 by Maryland's Special Traffic Interdiction Force were black (AP, 1995) Blacks are 25% of MD population, 20% of pop’n w/ driver's licenses

94% of the motorists stopped in one NJ town were minorities

Minorities are not only more likely to be stopped than whites, but they are also often pressured to allow searches of their vehicles, and they are more likely to allow such searches

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How asset forfeiture fuels profiling asset forfeiture is the process by which property may

be forfeited to the US without judicial involvement Legal standards have been raised; “probable cause” not sufficient; require

“preponderance of the evidence" that the property was used in or is the product of a crime

US DOJ reports: "Collectively, local police departments received $490 mil. worth of cash, goods, and property from drug asset forfeiture programs during fiscal 1997. Sheriffs' depts had total receipts of $158 mil."

“This kind of money adds a major incentive to police efforts to discover drug crimes.”

An estimated $10.9 billion in assets were seized by US Attorneys in forfeiture cases 1989-2009 (21 yrs) The annual growth rate averaged almost +20% Asset value seized in 2009 was 4 x’s greater than in 1989

[“Forfeiture Facts,” DrugWarFacts.org]

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Two ways of using information on race/ethnicity in police investigations

Case probability: race/ethnicity enters profile when it’s relevant to a particular event(/crime)

Class probability: race/ethnicity enters profile based on association with a class of events(/crimes), but not relevant to a particular event Such investigations risk violating “equal protection” e.g., CA, MD, and NJ cases▪ before having evidence of a particular crime, police set out

intending to investigate a high proportion of people of some particular race, ethnic group, age group, or so on

▪ only justification is that by doing so, they increase their chances of discovering some crimes

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Drug war profiling practices

Statistical studies and anecdotal evidence show that drug crimes are the almost exclusive focus of investigation in racial profiling cases

Evidence of “laying out broad dragnets to see what turns up” On basis of class probability

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Racial/ethnic profiling in “War on Terror” Common understandings tend to associate

terrorism with certain groups a particular sets of beliefs

But, according to many analysts, “Terrorism is a political strategy, not a creed” (i.e., “asymmetrical deployment of threats and violence against enemies using means that fall outside the forms of political struggle routinely operating within some current regime” (Tilly, “Terror, Terrorism, Terrorists,” 2002)

Therefore, ethnic or racial data should have no place in generic terrorism profiling

,

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Terrorists?

WikiLeaks/Julian Assange

Anwar al-Awlaki US-born Islamic lecturer of Yemeni descent who is said to have inspired anti-Western terrorism in his online sermons; Al-Awlaki's “targeted killing” was approved by President Obama, with the consent of the US National Security Council. After an October 2011 drone strike, Al-Awlaki became the first US citizen killed by the CIA in a targeted assassination.

Over a dozen peace activists in Midwest targeted in FBI investigation into “material support” for terrorism

cyber-terrorists?

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REFORM THE LAW: DECRIMINALIZATION

Ch. 43: Samuel Walker

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Decriminalization

Decriminalization of certain types of behavior has long been a major item on the liberal crime control agenda

The problem was the “overreach” of the criminal law Covers too wide a range of human

behavior Tends to express moralistic concerns of

particular groups offended by the behavior of others

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Reformers proposed decriminalization in 7 areas

1) Drunkenness2) Narcotics and drug abuse3) Gambling4) Disorderly conduct and vagrancy5) Abortion6) Sexual behavior7) Juvenile delinquency

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Rationale Many of these laws are criminogenic,

producing crime through: Labeling Secondary deviance Creation of a “crime tariff”

Overly broad criminal statutes undermine respect for the law (e.g., Prohibition) and overburden criminal justice system

The laws violate individual rights

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Proposition “With the possible exception of heroin policy,

decriminalization is simply irrelevant to the control of robbery and burglary” Placing decriminalization at center of crime control policy

evades the issue Conservatives focus on serious crime but tend to propose

unworkable solutions Liberals tend to shift the subject and talk about social reforms

not directly related to serious crime at all

One exception: the connection between heroin addiction and crime is clear, although decriminalization is just one possible alternative and its efficacy is not established