Racial Profiling: Ethical Practice or Unjustified Racism in the Criminal Justice System?

Abstract

Racial profiling is a problem that continues to be one of the most controversial issues in the field of criminal justice. Racial profiling occurs when law enforcement and those in positions of authority assume potential guilt of individuals suspected of criminal activity due to their race, nationality, or ethnicity. Models of criminal profiling that are supposed to be undertaken ethically are shaped by practices in racial profiling. There is also a significant lack of scientific evidence that supports the benefits of racial profiling although the practice continues to occur and is even influenced by vague laws that are aimed at protecting the common good. Racial profiling creates tension and perpetuates inequalities in the American justice system. Racial profiling also causes particular populations to be vulnerable to discrimination and facilitates the unjust treatment of vulnerable populations. Strain theory acknowledges the structural forces that leave populations vulnerable to racial profiling and takes into consideration that not all members of society have equal opportunity and privilege to fair trials. Racial profiling serves to maintain the status quo while communities that are often characterized by ethnic minorities continue to bread criminal activity due to poverty. Utilitarianism is a concept that continuously justifies racial profiling under the guise of protecting the common good. Virtue ethics demands for more effective reviews on crime and criminal activity based on morality, behaviors, and misbehaviors of individuals regardless of their race and background. Racial profiling is an unjustified and unethical practice that should be seriously revised or thrown out altogether in order to better serve the criminal justice system.

Introduction: Why Does Racial Profiling Occur?

It cannot be denied that racial profiling occurs regularly in the United States and is an ongoing issue. Before ensuing discussions regarding the ‘function’ of racial profiling, additional ethical concepts that can forge the practice and lead to unjustifiable discrimination, the consequences of racial profiling, and an ensuing discussion of the evidence that contributes to the unsupported justification of the practice, it must be understood why and how racial profiling occurs in an ethical sense. It is important to understand why the practice occurs by understanding a model of ethics utilized when it comes to profiling criminals. For the purposes of this paper, racial profiling will be defined as the following: any law enforcement initiated action that assumes guilt or probable cause in which racial profiling is justified based on race, ethnicity or nationality and not solely on the behavior of the individuals under scrutiny.

Now that a working definition of racial profiling has been identified, it will also be important to understand some of the ethical principles that are supposed to govern and enforce criminal profiling. Creating this understanding will allow the reader to comprehend the unjustified loopholes used to target minorities in the United States; a targeting that creates increased tension against authorities that are meant to serve and protect. In many examples, such as the Republican legislature in Arizona, vague laws encourage racial profiling by passing bills that require police to approach and question those suspected of immigrant status (Boylan 2011, p. 131). This practice inadvertently encourages racial profiling. These anti-immigrant laws that encourage racial profiling create a ‘guilty until proven innocent’ mentality among police officers and law enforcement (Boylan, 2011, p. 131). The question precedes us: should race ever constitute harassment and questioning from police officers and law enforcement?

As stated before, an undertaking of models for criminal profiling that are undertaken supposedly in an ethical manner is cause for discussion and serves as a good framework and backdrop for the ensuing discussions on racial profiling. According to Boylan, there are 3 essential phases that constitute a preferred model of ethical profiling in criminal investigations: 1. Determine if a crime occurred 2. Determine what exactly the crime was and 3. Create a profile of the criminal. (Boylan 2011, pp. 133-134) How does this ethical model contribute to the occurrence of racial profiling, and how does it justify the practice in law enforcement?

First of all, most crimes are committed against individuals who the criminal knows personally (Boylan 2011, p.132). This means that, if there is evidentiary support for a crime that is seemingly committed against an individual, investigations start at a personal level. Additionally, there have been accidental deaths of which it can be assumed that there was a crime committed, for instance a faulty wire causing an explosion at an airport. Before securing witnesses and attestations, it cannot be determined that a crime had been committed. However, due to human error, this cannot always be accounted for and assumptions are at times made that a crime was committed when in fact a crime wasn’t committed. Determining whether or not a crime has occurred seems simple in theory but is obviously flawed in practice, and racial profiling has occurred immediately after accidental explosions (Boylan 2011).

Secondly, after determining what exact crime had been committed, criminals have historically used what is otherwise known as a racial hoax. A racial hoax requires there to be some sort of socially constructed image of a predator or criminal. For instance, innocent black men have historically been the targets of racial hoax and racism that results in many innocent people getting arrested for crimes they did not commit (Boylan 2011). Unfortunately, assumptions behind falsely accused convictions accompanied by the utilization of a racial hoax by the actual criminal lie at the heart of many cases in which racial profiling occurs (Boylan 2011, p. 133). For instance, in 1994 Susan Smith accused a black man of killing her children when in fact Smith murdered her own children and relied on a racial hoax as cause for a falsely targeted investigation. These are not isolated incidences, and racial hoax profiling continues to occur today.

Therefore, determining whether or not a crime is committed and subsequently exactly what crime was committed can be difficult enough due to the cleverness of criminals, the staging and misdirection of physical evidence, and the misguided creation of a criminal profile based on witnesses and testimony. The creation of a criminal profile is threefold and should always be based on a behavior/psychological profile, a witness profile, and the physical, or forensic, evidence at the crime scene (Boylan 2011, p. 134). The case of the Mad Bomber in 1950’s New York spearheaded the beginning of scientific criminal profiling in New York and was accurate right down to what George Metesky, the man of Eastern European descent, was wearing on the day of his arrest (Boylan 2011, p. 135).

While scientific criminal profiling can be extremely accurate, is it always ethical? Does racial profiling of criminals lead to fair arrests? There are many factors that must be considered when understanding the consequences of racial profiling, the ethics of racial profiling, and whether or not the criminal justice system that encourages racial profiling should continue profiling in such a manner.

Evidence and Consequences of Racial Profiling

The question presents itself: is racial profiling an effective way of criminal profiling and does it result in placing the right people in the criminal justice system? Evidence supported by William H. Press’ publication concludes that even under optimal prior probabilities, strong profiling is no more accurate than a random sample of an entire population when it comes to rare malfeasance such as terrorism (2009, p. 1716). In fact, legal resources are often wasted on individuals that are determined to fit a ‘profile’. Even if conditions are ideal and objective, individuals of higher probability are repeatedly screened but also innocent (Press 2009, p. 1716). Additionally, Press contends that a new form of sampling should be utilized instead of strong racial profiling for rare malfeasors. Therefore, the potential consequences of racial profiling are referenced. However, profiling of rare malfeasors is not the only case for consequential discrimination that causes the profiling of the innocent.

One particular event in U.S. history spurred incessant racial profiling. According to Cassady Pitt of Bowling Green State University, the passing of the U.S. Patriot Act in 2001 made Muslims more vulnerable to racial profiling while there was no actual association or evidentiary support that Muslim Americans increased support for terrorism in the United States (Pitt 2011, p. 53). In contrast, according to Pitt’s study, African Americans were more likely to support acts of terror after they experienced racial profiling, confirming a common hypothesis that racial profiling breeds tension and mistrust in the system (Pitt 2011, p.53). Since racial profiling has always been an on-going problem in the United States well before September 11, 2001 and African Americans have been historically the largest target of racial profiles accompanied by Hispanics and Asians who are also consistently stopped and questioned in supposedly ‘routine’ investigations, one must question the consequences of these actions of law enforcement and whether or not it does more harm than good.

Additionally, one of the biggest ironic consequences of the U.S. Patriot act was that Americans tended to be in support of, for instance, wire-tapping targeting men of Arabic descent (Pitt 2011, p.53). This support for racial profiling was unjustified and disturbing in part of the American people. Racial profiling was proven to be an ineffective means to combat terrorism, so what does it mean with regards to the rest of the racial profiling that occurs every day?

There are other consequences outside of the tensions that racial profiling can breed across different ethnic groups as well as tensions with law enforcement. Scholars have found that racial discrimination in law enforcement is directly correlated with increased amounts of violence where there are higher feelings of racism (Pitt 2011, p.57). Additionally, racial profiling can cause increased feelings of depression and violent behavior as well as volatile mental states of those vulnerable to profiling. Additionally, terrorism exists as a form of resistance to perceived and actual injustices against specific people, nations, and groups. Political strain drives acts of terrorism; hegemony, oppression, and power drive violence against the authorities. Without hateful forms of racial and prejudicial oppression, terrorism would likely decrease or even cease to exist altogether. In a world where equality is continuously threatened and inequality persists along the lines of racial and ethnic discrimination, we must question what solutions might exist in order to mitigate the problems that racial profiling and subsequently racism serve to perpetuate.

According to author Anabelle Lever, the most troubling forms of profiling are what she terms ‘preventative’ and/or ‘prospective’ profiling in contrast with profiling that occurs after a known crime is committed (2011, p. 63). These are the most morally wrong, illegal and disturbing forms of profiling. Initiative random police searches in order to prevent crime based on statistical evidence of what a criminal should look like for specific crimes is concerning because it leads to harassment and violation of racial and ethnic minorities.

While racism persists in initial criminal profiling, does racism continue to persist throughout the process of conviction? In the United States and various other nations in the world, jury trials are prevalent in the justice system. The racial composition of juries is key in understanding what might be able to be done to mitigate the problems and tensions that racial profiling perpetuates. Lever contends that mixed-race juries are desirable even if a defendant and a plaintiff are of the same race, but mixed-race juries might not be sufficient enough in mitigating assumptions of guilt due to race or ethnicity (2011). Lever contends that mixed-race juries coupled with the rejection of racial profiling would better serve the justice system (2011, p. 62).

Thus far it becomes clear that racial profiling is a practice that not only persists in preventative and prospective criminal profiling but also persists in leading to unfair disadvantages in the courtroom and in conviction. While there is no room to discuss at length here the measures that could be taken to prevent unjust profiling and to increase equality and fair practice in the legal system, understanding the theoretical frameworks that can serve as lenses for understanding racial profiling is important in this discussion of the ethics of criminal justice.

Theory of Criminal Activity: Strain Theory

Structural forces influence opportunity and criminality in the United States. Strain theory acknowledges that not all autonomous actors in Western society have the same means of achieving upward mobility (Belknap 2006, p. 37). Additionally, strain theory focuses on individuals' negative relationships with others that prevent them from achieving personal and desired goals (Agnew 1999). That being said, strain theory does not directly ‘create’ victims of racial profiling but it recognizes tension and pressure not just on a societal level but also on an individual level. Therefore, different communities are going to experience different levels of strain, and the community level will experience varying levels of racial profiling, racial discrimination, and subsequently, retaliatory crime.

The ways in which community can impact the levels and types of crime that occur can mitigate issues of racial profiling that are immoral and wrong. Additionally, ethnic enclaves exist in the United States that are primarily in impoverished locations characterized by urban blight and urban decay. According to various social theorists as well as strain theorists such as Agnew, community values and normative behaviors can guide some individuals towards particular crimes that are either desirable, tactical towards survival within said community, or justifiable in response to certain situations (1999, p.123).

Taking into consideration the previous discussions pertaining to acts of terror and mistrust of the justice system, feelings of resentment thrive in communities containing individuals vulnerable to racial profiling: namely, minorities. Therefore racial profiling is cyclical: impoverished communities breed crime, and minorities who are vulnerable to an unjust justice system inhabit particular communities. Racial profiling also contributes to the loss of positive stimuli as well as the presentation of negative stimuli. Therefore, community-level variables including the impact of societal strain do nothing to present positive stimuli and therefore prevent positive outcomes and positive feelings for the justice system (Agnew, 1999, p.124). Racial profiling can be unfortunately self-perpetuating in many instances while continuously existing as an unjustified practice as well as a cause of crime in ethnic enclaves.

In addition to strain theory relating to the threat of racial profiling within minority communities and all that has been discussed thus far, is racial profiling ethical, and what is the thought process relating to theories of ethics? For the purposes of this discussion pertaining to racial profiling and the ‘ethics’, or morality, that may or may not exist to justify the practice, utilitarianism and virtue ethics will serve as frameworks for the discussion of the ethical principles behind an unjustified and problem-causing practice.

Utilitarian and Virtue Ethics of Racial Profiling

The ethics concept of utilitarianism can contribute to the discussion of what causes racial profiling, the justifications behind racial profiling as well as the implications for fair and mixed-race juries in contributing to more effective ethical review of crime and criminal profiling. According to the ethical concept of utilitarianism, both terrorism as well as the harsh punishment of terrorist acts can be justified by conceptions of cost-benefit analyses that can be considered efficient (depending on the criteria under review, taking into consideration who benefits and who suffers) but are immoral nonetheless (Butler 2003). Therefore, racial profiling contributes to the punishment of those unjustly simply because of there racial affiliations, nationalities and even religious beliefs. Social justifications for punishment rather than individual behavior can be justified by conceptions of utilitarianism but should not be justified morally. Since morals are synonymous with ethics, using the concept of utilitarianism is unethical when justifying racial profiling.

Utilitarianism assumes harm to some in order to benefit most. Outside of those that are incarcerated for acts of terrorism, there are extreme numbers of racial minorities incarcerated disproportionately for social and not individual purposes (Butler 2001, p. 2). For instance, the extreme sentences that African Americans receive for the possession of crack-cocaine versus the lesser punishments that White Americans receive for possession of cocaine. Both drugs are from the same plant. The biggest difference is the method of production and the street prices of the drugs. Hundreds of thousands of American adults are incarcerated for drug offenses yearly. However, we must understand that the state, as well as the federal government, deliberately punishes racial and ethnic minorities in order to maintain and perpetuate systems of power and the status quo, therefore achieving some end, which is justified by concepts of utilitarianism.

Utilitarianism preaches the justification of harm of particular individuals for the greater good. Who constitutes the beneficiaries of the ‘greater good’ and how can one actually quantify how racial profiling truly benefits the ‘greater good’ in the United States and anywhere else in the world? The question still remains: is a utilitarian stance really what perpetuates continued racial profiling, and how wrong in assumption is this stance? Racial profiling has not been proven to cause more good than harm, and it seems to perpetuate cycles of pain for those that are vulnerable to it.

An additional framework to consider is conceptions of virtue ethics. When considering criminal punishment, criminal inquiry, and racial profiling, one must ask whether or not offenders actually control the relationship they have with the state and the authorities. Unlike utilitarianism, deontology or consequentialism (which cannot be discussed at length here), virtue ethics argues that ethical decisions cannot be decided based on singular sets of what constitutes ‘good’ moral decision-making (Yankah 2008, p.67). Additionally, virtue ethics commits to particular moralities and highlights the moral challenges that weigh all morally relevant features. Features of moral relevance include behaviors, intentions, and dispositions. That being said, in reference to what has been previously discussed regarding racial profiling, it becomes clear that dispositions clearly influence racial profiling, especially at the prospective and preventative profiling stages of criminal profiling.

Also, when considering racial profiling, it must be acknowledged that virtue theorists understand that law and criminal punishment should consider the moral measure of individuals and that legal action should contribute to the improvement and the success of people, communities, and societies (Yankah, 2008, p. 68). Ethics, which is synonymous with morality, plays a large role in legal validity and the justification of law and legal practice. Additionally, legal positivism, or the assertion that legitimate law is written and regulated and adopted with clarity, does not depend on morality (Yankah 2008). Unfortunately, when laws such as the Patriot Act as well as laws such as New York’s adoption of random stop-and-frisk policies, laws serve as means to justify discrimination. Virtue theory would imply action, search, and punishment based on moral behaviors and misbehaviors of individuals. Legal positivism assumes written laws should be followed accordingly.

The vagueness of law contributes to the discrimination the innocent and the downtrodden often face due to racial profiling and criminal profiling that often has little evidentiary support and cannot be proven to benefit the ‘greater good’ as the utilitarian would aim to do. Therefore, neither utilitarianism nor virtue theory serves as effective concepts in ethics that should be used to justify the practice of racial profiling.

Conclusion

Racial profiling continues to mitigate actual justice. Racial profiling is a system that is perpetuated by feelings of racism, the maintenance of the status quo, and leaves populations vulnerable while creating feelings of hostility towards the legal system. Racial profiling has not been proven to improve the greater good as utilitarianism might suggest. Structural forces justify racial profiling by actually writing practices that perpetuate racial profiling into law based on little evidentiary support that racial profiling is effective in combatting terrorism, the drug trade, or any other criminal activity which fuels racial profiling. By reviewing the evidence, consequences, and justifications of racial profiling, it can be understood that racial profiling is not justified regardless of the ethical stances utilized. Populations vulnerable to racial profiling are left defenseless and hostile, while populations invulnerable to racial profiling are left ignorant of the problems racial profiling causes. Criminal profiling should be based on the behavior and misbehaviors of the individual, and prospective and preventative criminal profiling measures should take into account existing phenomena such as racial hoax as well as the history of racial profiling and their own biases in positions of power and authority. Juries should consist of mixed-raced jurors, which would aid in a fair trial and remove as many biases and racist attitudes to the greatest possible extent. Utilitarianism should never be used to justify racial profiling because there is no evidence that it actually benefits the ‘greater good’. While there is evidence that utilizing a utilitarian stance benefits the privileged and the invulnerable by keeping certain populations un-profiled in criminal investigations, it continues to help in maintaining tensions within and across ethnic populations. It is time that virtue theory is utilized correctly in cases of criminal profiling, which would decrease the arrests and detainment of innocent people simply due to their race, ethnicity or nationality. Racial profiling is not justified as an ethical practice in criminal justice.

References

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