Counterpoint: the case against profiling

International Social Science Review, Fall-Winter, 2004 by Christina Fauchon

Racial profiling can be defined as stopping and searching people passing through public areas solely because of their color, race, or ethnicity. Upon close examination of history, current events, the U.S. Constitution, case law, and both the policy itself and its social implications, one finds that racial profiling in any environment, including airports, is an unproductive and immoral policy to ensure safety.

Much like today, the World War II era was filled with fear and uncertainty, leading the U.S. government to incarcerate Japanese-Americans. Within three months of the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt signed Executive Order 9066 which:

   authorized the removal of all persons of Japanese descent from the
   west coast. Men, women and children of Japanese ancestry were
   falsely portrayed as a threat to national security and put into
   concentration camps without trial or individual review even though
   two thirds of them were U.S. citizens. (1)

In 1980, Congress established the Commission on Wartime Relocation and Internment of Civilians to investigate the internment of Japanese-Americans. The commission determined that a letter of apology and $20,000 payment was owed to the victims of the government's incorrect behavior. The Japanese-American community felt vindicated--their humiliation had finally been officially acknowledged as the government accepted responsibility. (2) The investigation and outcome showed that, in times of war, racial groups are often separated and mistreated out of fear, and that those who have mistreated them live to regret a hasty decision.

Since the 1980s, the practice of profiling has been applied to America's war on drugs. Specifically, law-enforcement officers have detained members of minority groups in vehicles more often than whites. In conducting such stops, these officers assume that minorities commit more drug offenses, which is not the case. "In all of the published studies to date," Northeastern University law professor Deborah Ramirez points out, "minorities are no more likely to be in possession of contraband than whites. Moreover, in many of these studies, minorities, especially Latinos, are less likely to be carrying contraband." (3) Thus, race has not proven to be a valuable or reliable resource in profiling criminals. The well-documented profiling of black people for drug offenses does nothing other than fill jail cells with black dealers and addicts while their white counterparts continue to engage in their illicit business. (4)

Targeting behavior rather than appearance has proven to be more successful. As Ramirez reports:

   Customs revamped its stop and search procedures to remove race from
   the factors considered when stop decisions were made. Instead,
   Customs agents selected suspects for stops and searches using
   observational techniques and focusing on specific behaviors....
   Customs conducted seventy percent fewer searches and their hit rates
   improved from approximately five percent to over fifteen
   percent. (5)

If racial profiling has proven time and again not to be beneficial, it seems logical to stop using a practice that alienates an entire group of people based on their race, a factor that cannot be changed.

Today Americans are faced with a conflict between the needs of national security and the desire for freedom and personal liberty. We are no longer on a battlefield where the enemy is clearly recognizable. Instead, we live at a time when citizens are frightened by information that everything from apartment buildings and malls to major bridges have become military targets. This constant fear has left Americans looking for some way to identify the enemy clearly. As a consequence, the historically discredited practice of racial profiling has again been instituted in airports.

The principles on which the United States has been built include the accepted wisdoms of freedom. The Fourteenth Amendment of the U.S. Constitution promotes two fundamental ideals to protect against racial profiling: equality and due process. The amendment states, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law. To single out a group of people by race violates equal protection: The law cannot protect a group of people that is being singled out for investigation. Furthermore, profiling leaves "[a] feeling of resentment among minorities, [a] sense of hurt, and [an] increasing loss of trust in the police." (7)

While few court cases have dealt with profiling, racial profiling is constitutionally unacceptable. Much of the justification for racial profiling is based on the notion of national security. However, in New York Times v. United States (1971), the U.S. Supreme Court ruled that national security cannot be placed above First Amendment rights that guarantee freedom of the press. In writing the majority opinion, Associate Justice Hugo Black declared: "The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendmen." (8) Accordingly, national security, because it is not clearly defined, can not be placed above any of the fundamental rights provided for under the U.S. Constitution. In short, national security is not an acceptable excuse to deny rights by profiling. While the United States government has a duty to protect its citizens from physical harm, it also has a larger duty to protect the ideals upon which the nation was founded and the undeniable rights of its citizenry. Physical harm may come and go over time, but the rights of the people must be protected to the fullest extent at all times if such rights are to remain permanent.