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Racial Profiling

Racial Profiling. March 29, 2006. March 27, 2000. Race as a Marker of Crime in Law. Yick Wo v. Hopkins , 118 U.S. 356 (1886) – Immigrant exclusion Harrison Act, Ch. 1, 38 Stat. 785 (1914) – Drug Prohibition Korematsu v. United States , 323 U.S. 214 (1944) – Japanese Internment

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Racial Profiling

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  1. Racial Profiling March 29, 2006

  2. March 27, 2000

  3. Race as a Marker of Crime in Law • Yick Wo v. Hopkins, 118 U.S. 356 (1886) – Immigrant exclusion • Harrison Act, Ch. 1, 38 Stat. 785 (1914) – Drug Prohibition • Korematsu v. United States, 323 U.S. 214 (1944) – Japanese Internment • Terry’s Lost Racial Narrative • Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) - loitering • U.S. v. Harvey, 16 F.3d 109, 115 (6th Cir. 1994) – drug courier profile • Charles Stuart Stops in Boston – precursor to Brown v Oneonta

  4. Reinforcing Cases • U.S. v Brignoni-Ponce (422 U.S. 873, 1975) – immigration and vehicle searches • “Profiles cease to become profiles when they become common knowledge” – US Border Patrol agent • Martinez-Fuerte (428 U.S. 543, 1976) - border • US v Lopez (328 F.Supp.1077, 1971) – airline • State v Ochoa (112 Ariz. 582, 544 P.2d. 1097, 1976) – stolen cars • U.S. v Mendenhall (446 U.S. 544, 1980) – airline and drugs • U.S. v Sokolow (490 U.S. 1, 1989) – airline and drugs • Whren v US, 517 U.S. 806 (1996) – drugs and cars • Brown v Oneonta – racial profile of suspect • Illinois v Wardlow (528 U . S . 119 , 2000) – neighborhood as indicia of crime

  5. Reinforcing Policies • Border patrol, cited in Brignoni-Ponce • “Computer Assisted Profiling System” (CAPS). (See Act Oct. 9, 1996, P.L. 104-264, Title III, § 307, 110 Stat. 3252) • Operation Pipeline: DEA profiling strategy, http://www.usdoj.gov/dea/programs/pipecon.htm • Broken Windows – Targeting “Disorder”

  6. Is This Racial Profiling? • Gross and Livingston: “’Racial profiling’ occurs whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person's racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating…..If the officer's conduct is based at least in part on such a general racial or ethnic judgment, it does not matter if she uses other criteria as well in deciding on her course of action..” • See, also, Deborah Ramirez et al., A Resource Guide on Racial Profiling Data Collection Systems (Nov. 2000) at http://www.usdoj.gov/cops/pdf/cp_resources/pubs_prod/police_practices_ handout/Section6.pdf

  7. Litigation Responses • Racial Profiling • United States v. New Jersey, No. 99-5970 (D. N.J. December 30, 1999) (consent decree entered); • Memorandum of Agreement, Between the USDOJ, Montgomery County (MD) Department of Police, and the Fraternal Order of Police, Montgomery County Lodge 35, Inc., January 14, 2000, http//www.usdoj.gov/crt/cor/Pubs/mcagrmt.htm, visited December 5, 2000; • United States v. City of Los Angeles, No. 00-11769 (C.D. California) (consent decreed) • See, also, http://www.racialprofilinganalysis.neu.edu/legislation/doj.php • Hybrid Claims (Use of Force and Racial Profiling) • United States v. City of Pittsburgh, 97-0354 (W.D. Pa. Apr. 16, 1997) (consent decree entered) • United States v. City of Steubenville, C2-97-966 (S.D. Ohio Sept. 3, 1997) (consent decree entered), http://usdoj.gov/cit/split/documents/steubensa.htm; • In re Cincinnati Policing, C-1-99-317 (S.D.Ohio 2002), http://www.usdoj.gov/crt/split/Cincmoafinal.htm • United States v. Highland Park (IL), 00-C-4212 (2001), http://www.usdoj.gov/crt/split/documents/Highland_MA.htm

  8. Legal Claims • Not very complex • Intersection of 4th and 14th Amendments • 42 U.S.C. §1983, 42 U.S.C. §14141 • 4th Amendment • Reasonable suspicion that “…criminal activity is afoot” … “based on experience, observations, and/or information from others” • Suspect can be briefly detained “by means of physical force or by show of authority” • Frisk is an easy path once a stop is effected • See People v. DeBouer for details on controlling law in NYS

  9. 14th Amendment • Race alone cannot justify intrusion (Daniels et al) • Race is part of suspect description can justify a stop (Brown v Oneonta) • Race cannot be a basis of reasonable suspicion apart from another factor (US v Whren, US v. Brignoni-Ponce)

  10. What Signals Suspicion? • Easier to say what doesn’t legally signal suspicion • Bulge in waistband • Refusal to identify yourself • Nervousness • Flight (see Wardlow) • Location • Suspicious companions • Highway Context? • “Hard Driving” • Vehicle profiling, Driver/vehicle profiling

  11. Standards of Proof • Disparate Impact v. Individualized Discrimination standards complicate 14th Amendment analysis, easier path to either marry 4th and 14th or pursue action based on 4th amendment alone • See, Ian Ayres, Pervasive Prejudice (2002) • What standard? • Disparate impact • “But for race…..”

  12. Research Challenges • Street Stops and Highway Stops require different measures of the same data, but with different validity and conceptual challenges • Street Stops • Have to index stop rate to crime rate, not population rate • What is base rate of crime? How measured? Rate per population index, but what population? Daytime versus nighttime estimates? • Separate estimates by type of crime, since rationales vary • Time of day? Day of week? • Highway Stops • Similar issues, though race-specific violation rates are harder to determine

  13. Research Strategies • Estimating the Base Rate • Street Stops • UK Strategy (www.homeoffice.gov.uk/rds/policerspubs1.html) • NYC Strategy (use crime rates in previous years) • Highway Stops (observational strategies) • Data Collection for Stops • Compliance issues • Accuracy issues • Understanding Interactions • Who is selected for stops? Why? • Who is asked for consensual search? Why? • The Legality of Stops – subjective analysis of “suspicion” • Analytic Models • Causal Modeling • Systemic or Equilibrium Modeling

  14. The Evidence: NYC Study Source: Gelman, Fagan and Kiss, in press

  15. Source: Gelman, Fagan and Kiss, in press

  16. Constitutionality of Stops and Searches

  17. Evidence – MD Highway Study Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

  18. Is Profiling Really Just a Search for Efficiency? Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

  19. Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

  20. Source: Katherine Barnes, Efficacy of Drug Interdiction, Duke L. J. (in press)

  21. Engines of Profiling • Formation of Suspicion (Alpert research) • Cues, Signaling, Disorder • Implicit Attributional Bias (Banaji research) • Stereotyping • Primed Behavior (Graham research) • Institutional Narrowing • Reinforcement of cognitive schema through organizational preferences • McFadden’s “knowledge” • Attributions of meaning to interactions, places • Role of Law in Shaping Institutional and Individual Behavior?

  22. Remedying Racial Profiling • Litigation – see Daniels requirements • Data • Transparency via Information Massing • Accountability • Compliance • Identification and sanctions of violators • Modifying Institutional Norms

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