Racial profiling has eclipsed most other criticisms of the police–minority and immigrant relationship and has emerged as perhaps the most controversial social issue in that area. Singling out an individual on the basis of race or national origin for law enforcement scrutiny is generally called racial profiling. Profiling refers to criteria police use for traffic stops, but some definitions expand it to any police contact on the basis of suspicion in public spaces, and it is applied in the examination of immigration enforcement. A classic scenario involves a traffic stop of a minority motorist who is under suspicion for the possession of contrabands, specifically illegal drugs. An emergent scenario is the stopping of a Latino and questioning about documentation authorizing him or her to be in the country legally. The import of examining the traffic stop in particular is that it is potentially the first step into the criminal justice system and thus its effects are far-reaching.
Although the association of physical attributes with criminality has a long history, going back at least to Cesare Lombroso’s “criminal man” theory from the late 19th century (Fattah 1997), the concept of racial profiling has been articulated as a particularly pressing social problem for our times and thus may be viewed as a somewhat distinct and more narrow issue than the more general concept of ethnic stereotyping. Should a person who appears to be racially different or of different national origin be stopped by law enforcement or questioned in public or in his or her home? Many unauthorized entrants and permanent resident aliens, on the surface, appear to be racially different or stand out because of ethnic or cultural differences. As a result, law enforcement has practiced racial and national-origin profiling in seeking out unauthorized immigrants for stops on the basis of suspicion of lacking documents or suspicion of committing a crime.
I. Key Events
III. The Whren Decision
IV. Unauthorized Immigrant Racial Profiling
V. National Origin Profiling in Interior Immigrant Raids
VI. National Origin Terrorist Profiling
VII. Reasons for and against Racial and National Origin Profiling
A. Terrorist Profiling and Stereotypes
B. Case Probability versus Class Probability as a Profiling Strategy
VIII. Profiling and Local Law Enforcement Controversy
A. 287g Immigration Policing Agreements
B. Arizona S.B. 1070: Support Our Law Enforcement and Safe Neighborhoods Act
Racial profiling processes in the police–minority relationship in the 21st century are embedded within a long history of minority stereotyping. The minority community, long vocal about a tense relationship with law enforcement that constrained citizenship protections, finally received confirmation of their suspicions following the publication of information on Operation Pipeline, the Florida drug interdiction program that linked minority status with drug trafficking.
More generally, racial profiling dominates the public discourse, particularly in minority communities, following high-profile events such as the killing of Amadou Diallo or the beating of Rodney King. Community members express outrage at these events and understand them as a consequence of race-based policing. After September 11, 2001, and the linking of terrorism with Middle Eastern identity that followed, the public discourse surrounding racial profiling assumed a different tone, even among many who were once adamantly opposed to the practice. “National security” concerns appeared to trump certain civil liberties immediately following the attack, although with the passage of time, this apparent dichotomy has subsided.
Since 9/11, immigrants have been singled out because they have come from terrorist-harboring nations or because they follow the traditional customs—in dress and so on— of Islam. This too is gives rise to profiling, on the basis of national origin, ethnicity, or religion as well as race. All are forms of profiling are controversial law-enforcement practices because they discriminate against the targeted groups. Profiling can be seen as a form of harassment of targeted immigrant communities. It is viewed as a discriminatory cause of differential crime rates between groups because people from profiled groups are more likely to be stopped by law enforcement or the U.S. Border Patrol and Immigration and Customs Enforcement. Nevertheless, officers need to identify unauthorized entrants and criminal suspects. How this is done is a subject of great controversy. Although racial profiling of citizens by police has been questioned, profiling of noncitizens on the basis of race, national origin, and religion has been a tool used in the war on terror and legitimated by the Supreme Court. At the same time, few citizens are aware of the extent to which their own rights are curtailed within 100 miles of a national border or by legislation passed to fight the war on terror.
After passage of the 1965 Immigration and Nationality Act, the number of racially and ethnically diverse entrants into the United States increased. However, race is now understood to be more of a cultural idea than a biological reality (Omi and Winant 1994). Although race is a social concept constructed to justify hierarchical rankings between groups as “natural,” many Americans still differentiate between racial groups based on skin color and other misleading observations. As a result, many white Americans have reacted very negatively to the perceived racial and cultural differences of the new immigrant population. These negative perceptions have led to a tolerance of racial profiling in policing and immigration enforcement.
The emergence of racial profiling as a unique concept in policing discourse occurred in the 1990s amid a confluence of issues. On the heels of relatively high crime rates associated with drug trafficking in the 1980s, several major cities in the United States implemented crime-control strategies intended to crack down on minor infractions of the law. Drug interdiction policies assumed a priority position in the nation’s public discourse and became more and more defined (both formally and informally) by racial and ethnic status issues as well as high-profile incidents of the abuse of force by the police—such as the Rodney King beating. The discovery of a cooperative effort in the 1980s and 1990s between the U.S. Drug Enforcement Agency and the Florida Department of Motor Vehicles, titled Operation Pipeline, has been identified as a critical point in the emergence of the racial profiling controversy. This drug interdiction program linked drug courier profiles to the racial and ethnic status of motorists traveling on state highways between Florida and the north (Withrow 2006). Opponents of racial profiling dubbed the regular traffic stops of minorities as due to the “crime” of driving while black.
As described by Covington, long-term claims by minorities of being targeted by the police were often viewed as anecdotal accounts from overly sensitive, angry, and disgruntled minorities (Withrow 2006). In part because official documentation of the phenomenon was nonexistent, much of the law enforcement community initially rejected the idea that race-based policing occurred. Indeed, the body of criminological research now available on racial profiling has been established only since the mid-1990s. This predominantly quantitative research focuses on issues of disproportionality in law enforcement–initiated traffic stops.
The main inquiry is whether minorities are subject to traffic stops (considered seizures under Fourth Amendment protections against “unreasonable search and seizures” by the state) disproportionate to their representation in the general driving population. Two early standards of proof guided police discretionary powers in stopping citizens: Fourth Amendment protections against unreasonable seizures without probable cause and later the 1968 U.S. Supreme Court decision in Terry v. Ohio, which introduced the legal standard of “reasonable suspicion” into the realm of police powers. Studies generally point to racial disparity in traffic stops, with more minority motorists relative to white motorists being stopped by law enforcement (Covington 2001). Additional inquiries of the racial profiling research agenda include whether minorities are searched more often, are subject to longer stops, receive more punitive measures if penalized during a stop, and have higher “hit rates” for contraband once a traffic stop is made (Buerger and Farrell 2002). The bulk of the data on these additional inquiries suggests that the answer to all of the questions except the last, is yes. Other attempts to address racial profiling are found in popular press accounts and in legal journals. The legal journals in particular provide a great deal of information on racial profiling and emphasize important distinctions between legal and moral arguments surrounding this issue.
Once racial profiling of minorities became established in the nation’s consciousness in the 1990s, Representative John Conyers (D-Michigan) introduced the Traffi c Stops Statistics Act in 1997, which passed unanimously in the House of Represen tatives. Formidable opposition from national police organizations, concerned about the demands the bill would make on law enforcement, effectively neutralized the bill in the Senate (Withrow 2006). Recurring efforts to introduce a federal law to address the issue have followed, with varying degrees of success, including an executive measure by President Bill Clinton in 1999 mandating a nationwide collection of traffic stop data. Currently, most states have enacted or are considering legislation requiring the collection of data on traffic stops by local and state law enforcement. The combined federal and state efforts to collect data on racial profiling along with the lawsuit-generated studies (Withrow 2006), which provided the first empirical glimpse into the issue, have produced a body of data that generally point to racial disparity in the treatment of individuals subjected to examination in traffic stops by law enforcement (Johnson 2001).
The U.S. Department of Justice issued voluntary guidelines for collecting racial profiling data in 2000. These data are collected by the Racial Profiling Data Resource Center at Northeastern University. At present, at least 27 states are participating. The U.S. Department of Justice (2006), has demonstrated that young male African Americans (22 percent) and Latinos (17 percent) are more likely to be searched than non-Latino whites (8 percent). African Americans and Latinos are three times as likely as non- Latino whites to be threatened with force during a police stop. In Rhode Island, research indicated that minority members were twice as likely as whites to be searched during a traffic stop but less likely to be in possession of prohibited drugs (U.S. Department of Justice 2005). This reaffirms New Jersey research showing that African Americans and Latinos were the profiled targets of 75 percent of traffic stops resulting in a search in New Jersey.
The bulk of research on racial profiling concerns the causal dynamics of racial profiling and typically emerges from the conflict framework. For example, in a recent study, researchers used conflict theory to discuss the police–minority relationship and how the law is differentially enforced against minorities in order to protect white interests (Buerger and Farrell 2002). Other research looks at a conflict theory variant, group-position theory, to describe how dominant groups view the police as allies (Harris 2002). Some researchers have discussed how cognitive bias and its associated concept of in-group bias explain the disproportionate numbers of minority motorists stopped by the police (U.S. Department of Justice 2006). Racial prejudice, although rarely directly discussed (and not necessarily subsumed under the previously mentioned concepts), is another factor in examinations of racial profiling motivations (U.S. Department of Justice 2005). Spatial context is also looked to in explaining racial disparities in policing behavior (Petrocelli, Piquero, and Smith 2004). For example, low-socioeconomic-status communities comprising minorities predominantly may be subject to more patrolling and stops.
The empirical focus on racial disparity in traffic stops was followed by quantitative studies addressing factors leading to an individual’s “perception” of being racially profiled (Wilson, Dunham, and Alpert 2004). Theory about the factors that shape citizens’ “perceptions” of racial profiling focus on citizens’ personal and vicarious experiences (Parker et al. 2004). Racial status is a determining factor in attitudes toward the police. Some theorize that the overall experience of racial oppression and other social institutions operates as a “priming” mechanism for minorities in shaping perceptions of police behavior (Bennett et al. 2004; Tyler and Wakslak 2004; Weitzer and Tuch 1999; Weitzer and Tuch 2004). Studies examining the effects of socioeconomic and racial status on perceptions of discrimination by the police have shown that class is not protective of negative perceptions of the police (Brown and Benedict 2002; Weitzer and Tuch 2005). Research examining the concept of procedural fairness to predict perceptions of racial profiling indicates that the quality of decision making, quality of treatment, and inferences about trustworthiness are the key criteria for minorities in assessing police behaviors (Weitzer and Tuch 2005). “Perception”-orientated research, however, has the potential to be critiqued for its emphasis on the psychological and the individual. There is the concern that research that treats racial matters in the context of “perceptions” or “ideas” has the effect of distancing structural elements of racial oppression. Examining racial matters as merely ideas “limits the possibility of understanding how it shapes . . . life chances” (Weitzer and Tuch 1999, 494–507).
The Whren Decision
The U.S. Supreme Court’s 1996 decision in Whren v. United States is perhaps the most important legal ruling concerning racial profiling in the modern era. Whren examined whether the police could make a legal traffic stop under pretext. The Court determined that regardless of the initial subjective intentions of the police officer, an objective reason for a stop would make the stop legal ( Johnson 2001). A classic example occurs when an officer suspects a motorist of possessing contraband but makes a traffic stop on the motorist under the “pretext” of failing to properly signal or some other minor traffic code violation. The officer then asks for the motorist’s consent to search the vehicle, knowing that most citizens do not know that they have a right not to consent to a search. Although an argument may be made that the minor traffic code violation justifies the stop, the decisions about which motorists get stopped for the objective violation is the fundamental concern of racial profiling opponents. In a racially ordered society such as the United States, it is argued, minorities will bear the brunt of this form of policing. The 1996 Whren decision is viewed as a lesser standard of proof that an officer has to meet in order to make a legal stop and therefore represents a broadening of police discretionary powers. Other legal rulings in recent years demonstrate the debate that surrounds the racial profiling controversy.
This has happened so often in traffic that, as mentioned above, it is referred to as driving while black. Skin color is a very dubious basis for making a traffic stop. Many African American professionals driving more expensive cars get stopped because a police officer suspects that the car is stolen. This is experienced as both harassment and a form of discrimination against African Americans. Law enforcement policies have been adopted to reduce these incidents, but African Americans are citizens, whereas many new immigrants are not. Permanent resident aliens and undocumented immigrants have no protection from profiling. Th us, there is a spate of associated terms: driving while brown, driving while immigrant and, most recently, driving while Arab. On the other hand, non-Hispanic white Americans are privileged to receive less police attention and are less likely to be caught for drug possession at a traffic stop.
Unauthorized Immigrant Racial Profiling
The U.S. Border Patrol and the Immigration and Naturalization Service (INS), now the Bureau of Immigration and Customs Enforcement (ICE), originated the racial and national-origin profiling of immigrants. In the U.S.-Mexico border region, there are many Mexican American citizens and Mexican permanent-resident aliens. Because many attempting unauthorized entry over the border are Latino, Mexican citizens and legal Latino residents are more likely to be stopped than individuals of other nationalities. This is a historical practice. In the 1950s, Operation Wetback targeted Mexicans, and in 1986, when undocumented farm workers were eligible for legalization, there was a series of U.S. Border Patrol sweeps to confiscate their documents and deport them until this practice was contested by protestors and the media. The INS/ICE has pursued a very anti-immigrant enforcement strategy that is only partially controlled by immigrant advocates and media publicity.
In 1975, the Supreme Court decided in United States v. Brignoni-Ponce (422 U.S. 873) that since Mexicans were estimated to make up 85 percent of undocumented entrants, an officer could use “Mexican appearance” as a “relevant factor” for investigation provided that it was not the only ground for suspicion ( Johnson 2001). One result has been that Mexicans—and now Central Americans—have been more likely to be deported than their statistical frequency in the undocumented population would merit. Immigration profiling has an adverse impact on citizens. If Mexican profiling occurs, then Hispanic citizens, permanent resident aliens, and individuals with visas may be stopped, interrogated, and detained as well as individuals of other ethnicity who are mistaken as Hispanic.
Kevin Johnson (2001) alleges that this policy places an unfair burden on the legal Hispanic population, which has greatly grown in size since 1973. He points out that the estimate that 85 percent of undocumented entrants were Mexican was always overinclusive and that current estimates place Mexicans at 50 percent of the undocumented population. The harms resulting from this policy include that it is embarrassing and humiliating to be stopped, causing emotional stress and the possibility that verbal and physical abuse will occur. Even more importantly, Mexican profiling undermines the status of Hispanics in American society and encourages a stereotype that characterizes Hispanics as “foreigners.” This practice has even led to the unlawful arrest and deportation of legal permanent residents and citizens. Hispanics have become doubly suspect; they may be racially profiled as potential criminals or as potential undocumented entrants.
David Cole (2003), a lawyer and immigrant advocate, coined the phrase “driving while immigrant” to refer to police traffic stops based on immigrant racial profiling. Mexicans have been a major focus of the debate on profiling undocumented immigrants. The stereotype that Latinos are illegal can result in unrefined decisions to stop a person because he or she looks Mexican, which is presumably to be justified after the fact. The very low “reasonable suspicion” standard augments this. The U.S. Border Patrol often refers to this as “canned probable cause.” David A. Harris, a legal scholar, believes immigrants are judged guilty on sight and disproportionately stopped; their crime or deportation rate will be elevated because non-Latino whites are less likely to be stopped.
Driving while brown, even though Latinos are racially classified as white, is no longer a Supreme Court criterion for stop and search in immigration enforcement. In 2000, the U.S. Court of Appeals for the Ninth Circuit disregarded the United States v. Brignoni-Ponce ruling and stated, in United States v. Montero-Camargo (177 F.3d 1113, 1118 9th Cir. 1999), that “Hispanic appearance is not a lawful basis for making a stop because it is a ‘weak proxy’ for undocumented status.” The court opinion stated,
We conclude at this point in our nation’s history, and given the continuing changes in our racial and ethnic composition, Latino appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required. Moreover, we conclude, for the reasons that we have indicated that it is also not an appropriate factor.
Some decisions, like that in U.S. v. Montero-Camaro (2000), have ruled that race was not a basis by which border patrol agents could detain individuals, while the Brown v. City of Oneonta (2000) decision ruled that the many black males who were questioned as potential rape suspects in a particular case did not have their Fourteenth Amendment protections violated (Cole 2003).
National Origin Profiling in Interior Immigrant Raids
There has been a long history of U.S. Border Patrol sweeps using physical appearance. In 1997, the Chandler police cooperated in stopping, detaining, and questioning residents using skin color as one cue. In 2001 the New York Times reported that INS / ICE officers in New York relied on racial and ethnic physical and social characteristics and accents to profile undocumented entrants (Sachs 2001). Relying on group probability as the basis for immigration enforcement, rather than individual suspicion, violates the provision for equal protection under the law provided by the Fourteenth Amendment. There was pressure to end this profiling, but then terrorist catastrophe resulted in a retraction of civil rights, especially for noncitizens.
Pressure on the U.S. Border Patrol is intense because conservatives demand more action while targeted groups, including Latinos, claim civil rights violations (Bennett 2004). In 2004, the Temecula Border Patrol conducted inland sweeps in Norco, Corona, and Escondido, California. Complaints resulted in the Department of Homeland Security denying that it gave authorization for the sweeps. Hispanic protests of immigrant sweeps occurred all over California. The Los Angeles Times indicated that more than 150 undocumented immigrants were arrested in San Bernardino and Riverside County, California (Wilson and Murillo 2004). Illustrating a connection between political expediency and reducing national origin profiling, in 2004, a presidential election year, the Latino vote was considered crucial and these sweeps were curtailed. The sweeps frighten both legal immigrants and foreign-born citizens.
Post-9/11 sweeps of undocumented immigrants are less open to public scrutiny because of the secrecy provisions allowed by the Patriot Act of 2001. To understand the level of public fear that can be generated, it must be understood that in the 2004 California sweeps, the U.S. Border Patrol questioned 9, 972 people on trolleys, at bus stops, in train stations, at other public transportation sites, and on the streets (Spagat 2004). They arrested 291 people, a very low strike rate for the degree of public scrutiny involved (Wilson and Murillo 2004).
After 9/11, U.S. Border Patrol efforts were expanded to include sweeps near the Canadian Border (Abramsky 2008). The community of Havre, Montana, considers the train inspections that occur now to be a sign of patriotic defense. Northern U.S. Border Patrol installation has been expensive; its captures include visa-overstaying tourists, undocumented Latinos looking for work, and potential asylum seekers and refugees—no individuals connected to terrorism. Abramsky, writing in The Nation, thinks these activities give a false picture of counterterrorism security. Nevertheless, a series of Supreme Court rulings has given the right to demand ID to law enforcement officers and limited the probable cause requirements for search and interrogation of individuals within 100 miles of the two international borders with Canada and Mexico.
In 2005, the Ninth Circuit Court of Appeals ruled in U.S. v. Cervantes-Flores that U.S. Border Patrol questions can be asked about citizenship, immigration status, and suspicious activities. Any additional search or detention must be justified by either consent or probable cause. Under provisions of post-9/11 legislation, however, the U.S. Border Patrol has been given additional powers.
National Origin Terrorist Profiling
The history of terrorist suspicion and profiling began with airline bombings such as that of Pan Am Flight 103 over Lockerbie, Scotland. Terrorist hijackings and bombings have been associated with Arabs and Muslims. In the mid-1990s, airports began profiling darker-skinned individuals who spoke Arabic or English with an Arabic accent (Harris 2002). In the mid-1990s, airport stops and searches of Arab and Muslim Americans became routine. Arab and Muslim Americans began to be stigmatized. After the 1996 crash of TWA Flight 800 over Long Island in which terrorism was initially suspected, Arab Americans began to be very harshly treated at airports. President Clinton appointed a commission to study airport security. The result was Computer Assisted Passenger Screening (CAPS), which selects passengers to screen based on their current reservation and not on their race, nationality, ethnicity or religion. Passengers are selected at random.
After 9/11 both President George W. Bush and Attorney General John Ashcroft adopted terrorist profiling on the basis of national origin and religion. Subsequently, Congress approved the Patriot Act. This act gave the INS unlimited power to detain noncitizens who were thought to have a connection to terrorism. A ruling by Ashcroft allowed ICE to suspend a judge’s release order in immigrant cases. Proof of a link to terrorism or crime was not needed to detain noncitizens (Human Rights First 2004).
In 2006, a federal judge ruled that immigration law could be used to detain noncitizens on the basis of race, religion, or national origin. This measure supported racial, national origin, and religious profiling of noncitizens. It was made in reaction to a legal case involving the post-9/11 sweeps of Muslim immigrants, the vast majority of whom were not linked to terrorism. In particular, a sweep had been conducted in New York City, the site of the former World Trade Center. The INS and FBI, with assistance of New York City Police, profiled and arrested Muslim Middle Eastern and Southeast Asian immigrants. Many were detained and then deported if immigration violations were discovered.
Many noncitizens were arrested without knowing their rights and were denied due process of the law under the Illegal Immigration Reform and Individual Responsibility Act of 1996 (IIRIRA). The grounds for deportation established by IIRIRA provide for mandatory detention and deportation of permanent resident aliens who commit crimes classified as aggravated felonies. In other words, immigration law was used in a mostly fruitless search for terrorists, which resulted in many national origin or religiously profiled arrests and deportation. Deepa Fernandes (2007) states that INS and FBI agents did not identify themselves or show credentials before asking to see a profiled person’s ID, often in their own homes. Immigrants were arrested if they could not provide documentation. These mass arrests were conducted secretly under the terrorist-investigation secrecy provision of the Patriot Act. Attorney General Ashcroft authorized mass arrest of Arab, Southeast Asian, and Muslim men. The noncitizens profiled in the antiterrorism sweep were interviewed by the INS and FBI. If no link to terrorism was established, they were turned over to the INS for prosecution based on immigration status. Immigrants, immigration advocates, and certain government officials protested the sweeps.
After 9/11 all noncitizen immigrant men from specified Arab and Muslim countries were asked to register with the government. Those profiled included persons from Bangladesh, Indonesia, Egypt, Bahrain, Iran, Iraq, Syria, Algeria, Morocco, North Korea, Oman, Jordan, Kuwait, Pakistan, Libya, Sudan, Saudi Arabia, Afghanistan, Algeria, Eritrea, Lebanon, Qatar, Somalia, Tunisia, the United Arab Emirates, and Yemen. The FBI wanted to interview 5,000 men between 18 and 33 years of age who had entered the United States after the year 2000 from countries identified as having al Qaeda activity. These interviews were designated as voluntary, but if the noncitizen did not appear, he or she was deemed to be guilty of an immigration violation (Fernandes 2007). At the interviews, visa overstayers were identified and ordered deported regardless of any connection to terrorism. Many men who had some form of legal status were detained until the INS cleared them. The detained and deported men often had wives and children who suffered emotionally and economically after the deportations. The immigrant community was horrified.
Federal requests led many states and communities to allow their police to make immigration-related inquiries. In both 2004 and 2005, some 35 police agencies were converted into ICE immigration enforcers. In Florida and other states, immigrant advocates have fought against using police to request immigration status. A negative consequence of using police to enforce immigration law is that immigrant communities fear reporting crime. Many police departments are resisting being used to enforce immigration law for this reason. Nevertheless, in 2005, the House of Representatives passed legislation allowing the police to enforce immigration laws, but the legislation has not passed the Senate.
During the antiterrorism national origin and religion sweep, the government encouraged individuals and communities to be on the lookout for suspicious behavior. The persons identifying people were often coworkers, neighbors, or ex-girlfriends. The reports were connected to possible terrorism, but the result was that many people who were simply out of compliance with visa documentation or residency registration or undocumented were detained and deported. Sometimes these deportations were engineered by people seeking revenge (Fernandes 2007). These individuals and their families were not allowed access to secret evidence. Many had no prior criminal record prior to deportation. Judges were given no authority to review cases in which deportation was mandatory. In addition, the inspector general of the Justice Department (2003) criticized the fact that bail was being denied in all of these cases with no judicial overrides. This meant that deportees would lack assistance of family and legal counsel owing to problems of access.
Amnesty International (2004), a human rights advocacy group, has found that between 9/11 and 2003, Arab American citizens, permanent resident aliens, undocumented entrants, and visa overstayers have been three times more likely than whites to be profiled. Over 75 percent of Arab Americans report having been discriminated against since the destruction of the World Trade Center Towers. Arabs and South Asians have been asked to vacate airplanes because they made passengers anxious. In airports, Sikh Americans, who wear turbans as a part of their religion, have been asked to remove them.
Reasons for and against Racial and National Origin Profiling
In the United States, advocates for minority groups and immigrants argue that flawed ideas in law enforcement have associated race and national origin with crime. This has the impact of criminalizing minorities and immigrants. Such racial profiling in law enforcement is based on several reasons (Leadership Conference on Civil Rights 2004). The first is the stereotype that minorities / immigrants commit a majority of crimes and that profiling them is a good strategy for using police resources. A related idea is that most minority members / immigrants are criminals. Both assertions are baseless (Harris 2002; Leadership Conference on Civil Rights 2004). This linkage is based on prison statistics showing disproportionate rates of minority imprisonment. Unfortunately, few people connect racial profiling with higher imprisonment rates. Nor do they stop to think that non-Hispanic white privilege with regard to not being stopped or searched might contribute to their underrepresentation in the prison population (aided by their higher socioeconomic status and ability to hire good lawyers) (Harris 1999).
Proponents of racial profiling suggest that minorities are disproportionately subject to stops compared with whites because minorities are disproportionately involved in criminal activity, a variant of statistical discrimination theory. This framework suggests that it is rational, given the distribution of minorities in the criminal justice system, to target minorities for criminal behavior (Weitzer and Tuch 2005). More recent studies suggest that the rationale behind statistical discrimination explanations for racial profiling is discounted when considering the bulk of studies that show that the rates of contraband discovered in traffic stops, for example, are quite similar across racial and ethnic groups (Tomaskovic-Devey, Mason, and Zingraff 2004). Another common argument against the rational discrimination thesis is that racial profiling criminalizes minority groups as a whole, creating distrust or a disconnect between law enforcement and the community. A common refrain from proponents of the practice is that citizens who are innocent of wrongdoing should not be concerned about law enforcement contact or should look upon the practice as merely an inconvenience.
Research indicates that African Americans commit drug-related crimes at a rate that is proportional to their numbers in the population. Although they have been disproportionately profiled for traffic stops, there is a lower rate of finding evidence of drug possession than for when non-Hispanic whites are stopped. Indeed, a General Accounting Office Report (2000) has indicated the opposite. The reason is that race is not a reliable cue. Behavioral and informational cues are better. Switching away from disproportionate searching of minority women and increasing searches of men and non-Hispanic whites reduced the number of searches and greatly increased the success rate.
Another issue related to racial profiling is the stereotype that minorities and /or immigrants commit more violent crimes. This is not relevant to racial profiling. Profiling is practiced in relation to traffic stops, stop-and-frisk actions, and other nonviolent police actions. Many violent crimes have witnesses who can generate a description of whom to look for. Profiling is done in cases of hidden infractions, such as drug trafficking.
Racial profiling was treated as more of an issue prior to 9/11 and the resulting retraction of civil liberties. During the 2000 Bush-versus-Gore presidential election, candidate Al Gore introduced the topic of racial profiling and both George W. Bush and his running mate Dick Cheney came out against it. Conservative pundits continued to advocate it. John Derbyshire (2001) in the National Review defended racial profiling as an efficient police technique based on probability that best makes use of limited resources. George Will (2001), writing in the Washington Post, purported that using race as a basis for a traffic stop is reasonable as long as it is part of a group of risk factors used in assessing suspect behavior. He distinguished between hard profiling (race as the target characteristic) and soft profiling (race as part of a profile indicating suspicion). In addition, Will indicated that other factors might be the reason that minority drivers were more likely to be stopped, such as vehicle defects and so on.
In 2000, the Gallup public opinion poll showed that 81 percent of Americans were in favor of ending racial profiling. In February 2001, President George W. Bush stated that racial profiling “is wrong and we will end it in America” (U.S. Department of Justice 2003). Attorney General John Ashcroft took this as a charge from the president. Congress moved toward the generation of legislation to this effect. Next, the attacks of 9/11 created insecurity, and a rollback began on the push for the right of minorities not to be profiled. Nevertheless, immigrants and citizens have always been profiled in border regions and in the interior because of the unauthorized entrant issue.
Terrorist Profiling and Stereotypes
Terrorist profiling is based on unjustified stereotypes about the propensity of group members to engage in illegal activity. The majority of immigrants are law-abiding. Similarly, being Arab or Muslim does not make an individual a terrorist. Although all of the 9/11 hijackers were Arab nationals, many terrorists are of different backgrounds. Richard Reid, the “Shoe Bomber” of December 22, 2001, was of Jamaican ancestry with British citizenship. Theodore Kaczynski, the “Unabomber,” and Timothy McVeigh were white American citizens who committed terrorist acts. John Walker Lindh (the “American Taliban”) and other American citizens have been involved with the Taliban, al Qaeda, and other terrorist groups. Recently, Nigerian and Pakistani individuals have been taken into custody for attempted terrorist acts. “Jihad Jane” (Colleen LaRose), charged with recruiting terrorists to wage war on behalf of Muslims, is a native-born American.
Those who oppose national origin or terrorist profiling argue that the all-too-human way of thinking in terms of stereotypes rather than cues for terrorist behavior has hampered the search for terrorist operatives and hurt many innocent people. Terrorist profiling is a simplistic tactic that does not substitute for using behavior-based cues in enforcement (National Conference on Civil Rights Leadership 2004). Finally, terrorist profiling, like racial profiling, creates fear and alienates immigrant communities from law enforcement instead of encouraging them to help investigations.
Case Probability versus Class Probability as a Profiling Strategy
Gene Callahan and William Anderson (2001), both journalists, believe that the war on drugs has led to racial profiling. They state that when law enforcement uses class probability (i.e., stereotyping a group of socially differentiated individuals), it is profiling, and the claim can be made that individuals targeted on that basis have not received equal protection under the law. Instead, they suggest that law enforcement should use case probability when this is a factor but not all factors have been identified in targeting an offender. There are two ways of using information about race and ethnicity. Class probability stereotypes a group, but if the race or ethnicity of a suspect has been established by an officer or victim, it is reasonable to focus on finding a suspect with that social characteristic. In other words, it must be germane to a specific case, not part of a general surveillance strategy.
On the basis of case probability, the 9/11 terrorists exhibited several behavioral cues that could have excited suspicion: (1) they bought one-way tickets, (2) they made reservations just before the flights, and (3) they paid with large amounts of cash (in a plastic credit/debit card society). No one connected the dots. Everyone noticed after the fact that they were Arab nationals, which suggests that new recruits of different national origins would be used by always versatile terrorist groups in any new attack. One issue with advocating class (one-dimensional factor) probability is that post-9/11 terrorist profiling focused on national origin and religion with no strategy. Profiled permanent aliens and undocumented immigrants were denied the right to due process and legal counsel if they were “out of status,” which means that their immigration paperwork was not current. Many individuals were mandatorily detained and deported, but there is still no connection between the U.S. immigrant communities and 9/11. Critics argue that this was a huge waste of law enforcement resources and taxpayer money in order that federal officials could state that immigrant communities did not contain terrorist organizations.
Profiling and Local Law Enforcement Controversy
287g Immigration Policing Agreements
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provided for local and state police to cooperate with federal agents in immigration enforcement through the 287g program (U.S. Immigration and Customs Enforcement 2010). In such cases a Memorandum of Agreement (MOA) is signed between the federal government and state or local policing agencies, and participants are supervised by Immigration and Customs Enforcement (ICE). The Obama administration has expanded 287g agreements. Currently, information on noncitizens with civil or criminal violations and/or under suspicion of terrorist connections is entered into a National Crime Information Center (NCIC) database and available to police.
In releasing official statements, officials argue that their deportation efforts especially target criminal aliens. This strategy has received criticism from immigrant advocates concerned about racial profiling and pro-enforcement conservatives who claim that prioritizing locating and deporting criminal aliens would lead to neglect of those who lack documents. The U.S. Government Accountability Office (2009, 4) found that ICE officials did not document, consistent with internal control standards, that they had enhanced community safety and security by targeting aliens committing violent or other serious crimes. Certain participating agencies arrested and deported aliens who had committed minor crimes like carrying an open container of alcohol. The Government Accountability Office (GAO) noted that if all 287g participants sought ICE detainment for deportable aliens, they would lack space for detention, including that designated for violent criminal aliens.
287g has primarily led to arrest of nonviolent unauthorized migrants and immigrants. The border metropolis of El Paso’s Operation Linebacker resulted in 1,076 arrests of unauthorized entrants and drug charges against 4 noncitizens (Staudt 2008). Data on 287g alien arrests caused ICE to change the memoranda of agreement MOAs and stress that the purpose is to locate, imprison, and remove aliens who commit narcotics or human smuggling violations, gang or organized crimes, and sex-related offenses. Despite federal efforts to involve police, municipalities have not uniformly responded (Krestsedemas 2008, 341–342).
Arguments in favor of involving local and state police in federal immigration enforcement include that they are a “multiple force amplifier.” If they are allowed to use immigration status as a factor in questioning and arrest, it increases the likelihood that unauthorized immigrants will be detected. Giving police the go-ahead to probe is considered to assist in detecting terrorist activity. The 9/11 Commission (Eldridge et al. 2004) found that 4 of the 9/11 hijackers were subject to routine traffic stops and could have been detained for speeding ticket or visa violations. An argument against expanding state and local police power is that it would alienate and reduce the cooperation of immigrant community residents. Communities with a concentration of unauthorized immigrants may be less cooperative and underreport crime and victimization to police if they fear that family or community members will be deported (Romero 2006; Martinez 2007). Community policing strategies necessitate frequent contact and good relations between police and neighborhood residents. Police and neighborhood relations are strained if there is fear (Martinez 2007). Furthermore, many immigrants’ original homelands are characterized by police corruption and thus these people may be reluctant to trust American police. Racial and national origin screening is another cause for immigrant concern (Krestsedemas 2008, 346–351).
Arizona S.B. 1070: Support Our Law Enforcement and Safe Neighborhoods Act
Racial profiling controversy was renewed by the passage of Arizona Senate Bill 1070, the Support our Law Enforcement and Safe Neighborhoods Act. SB 1070 made it a state misdemeanor crime for a noncitizen to be in the United States without having federal visa or immigration documents, which are required to be carried, and authorizes police to enforce immigration law (Archibold 2010). State and local police are required to check immigration status if there is reasonable suspicion that an individual is an unauthorized entrant. Police can make a warrantless arrest on the basis of probable cause if they believe an individual without documents is an unauthorized alien. After arrest, individuals cannot be released until establishing legal status by criteria of § 1373(c) of Title 8 of the U.S. Code. A first-time offender can be fined $500 and given up to six months of jail time. In order to avoid arrest, permanent resident aliens and visitors with visas must carry identification documents such as an Arizona driver’s license, a nonoperator identification license, or any recognized federal, state, or local ID certifying immigration status.
Arizona’s state and local police departments could have signed MOA’s with the federal 287g program, but that would have required numerous legal contracts. Arizona’s law is the first to require police to check immigration status. Both advocates and opponents of the bill gathered for praise or protest during the Arizona legislature’s consideration of its passage (Harris, Rau, and Creno 2010). Arizona Governor Jan Brewer stated: “We must enforce the law evenly, and without regard to skin color, accent or social status” (Samuels 2010). The law inspired public protest, constitutional challenges, and calls for an economic boycott of Arizona. One result was the passage of Arizona 2162, which amends the law by stating: “prosecutors would not investigate complaints based on race, color or national origin.”
Advocates of the law present ideas such as the “force multiplier” effect in the context of Arizona’s upsurge in unauthorized immigration. Drug and human trafficking and spillover drug-related violence are major concerns. Being able to establish legal status aids law enforcement in preventing these activities. Nevertheless, immigration is the domain of federal law and the Arizona bill may be unconstitutional. Multiple lawsuits have been filed against it. An lawsuit filed by the American Civil Liberties Union argues that the bill violates the Supremacy Clause of the U.S. Constitution, which provides for federal authority over the states and, by legal precedent, immigration. Kurt Kobach, a law professor at the University of Missouri–Kansas City School of Law and codrafter of the AZ bill, argues that the bill is constitutional because of the principle of “concurrent enforcement.” In other words, the state law parallels federal law, which makes first entry without authorization documentation a misdemeanor (Schwartz and Archibold 2010). The leading criticism of the bill is that it justifies racial profiling (Schwartz and Archibold 2010). Thinking critically about behavioral or situational cues, it is difficult to come up with any that distinguish someone who is not lawfully in the country.
The criteria that might distinguish an unauthorized immigrant overlap with legal resident and native-born minority status are racialized physical features, language and/ or accent, and signs of lower- or working-class social status. Ultimately, when police are asked to enforce immigration status, unless they ask everyone, any “suspicion” is likely to be based on racial or national origin profiling unless there is a cause for a traffic stop, such as speeding. Because there is no basis for visually distinguishing between unauthorized and legal residents, including citizens, the law has discriminatory implications.
Arizona S.B. 1070 is likely to result in a pattern similar to “driving while black,” and individuals who have a “foreign” appearance are likely to experience traffic stops and other public police encounters. The key to proving legal status is identification documentation, which can be legal or fraudulent. Citizens and legal permanent residents will have to carry valid IDs, an inconvenience Americans have strongly resisted when the idea of a national ID card has been proposed.
The broadening of state powers following the terrorist attacks on the United States in 2001 have limited the restrictions put on law enforcement, even at the local police level. Even prior to the attacks, the U.S. Supreme Court’s Whren decision foreshadowed the direction of federal legislation toward a lessening of citizenry protections. Because the Fourth and Fourteenth Amendments to the U.S. Constitution are often posed as legal remedies to address racial profiling practices, there is limited movement toward criminalizing racial profiling under new law. Advocates of legislation to specifically address racialized issues in the legal realm contend that Fourth and Fourteenth Amendment protection claims are rarely successful legal strategies because of the high standards of proof that each require to prove discrimination.
Near the U.S.-Mexico border everyone is a suspect, citizen and noncitizen alike, with little recourse to Fourteenth Amendment rights regarding inspection of documents and vehicles. The problems of human and drug smuggling have made everyone a suspect to be questioned, and the Supreme Court has validated the right to see ID and to ask questions about suspicious behavior. In the interior, both citizens and noncitizens became suspects in the war on terror, but national origin and religious profiling focused on immigrant communities with, by and large, fruitless results. Citizens have not sufficiently considered the loss of civil liberties they suffered after 9/11 or when they should get them back, and most are unaware that they have diminished rights within 100 miles of a border.
Immigrant communities are composed of people who can help in the war on terror if they are not alienated by profiling. Will the government come to realize that all forms of profiling violate the Fourteenth Amendment right to equal protection under the law and waste resources that could be better expended in looking for behavioral and informational cues of unlawful activity? Why is it unlikely that driving as a citizen will become the basis of a profile? The debate will continue, and one has to judge whether simple stereotyping rather than good law enforcement practice is the basis of the law and make appropriate changes.
Judith Ann Warner and Karen S. Glover
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