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A new chapter considers how the events of September 11 have recast the racial profiling issue, tipping public opinion in favor of the policy as a tool in fighting terrorism.
PROFILES IN INJUSTICE:
AMERICAN LIFE UNDER THE
REGIME OF RACIAL PROFILING
Sergeant Rossano Gerald
Sergeant First Class Rossano Gerald, a black man, had made the United States Army his life. He served in Operation Desert Storm in Iraq, winning the Bronze Star, and in Operation United Shield in Somalia. His nineteen-year military career has included postings both in the United States and overseas. Military service runs deep in Sergeant Gerald's family; he describes himself as an "army brat" who grew up on military bases.
One blazing hot August day in 1998, Sergeant Gerald and his twelve-year-old son, Gregory, were on their way to a big family reunion in Oklahoma. Almost as soon as they crossed into Oklahoma from Arkansas, an Oklahoma Highway Patrol officer stopped their car. He questioned them, warning Sergeant Gerald not to follow cars in front of him too closely, then allowed him to leave. (Gerald denies following any other cars too closely; because he had noticed several highway patrol cars as he entered the state, he had been driving with extra caution.) But less than half an hour farther into Oklahoma, another highway patrol officer stopped Sergeant Gerald again, this time accusing him of changing lanes without signaling. Sergeant Gerald denied this, and he told the officer that another officer had just stopped him.
Despite Sergeant Gerald's having produced a valid driver's license, proof of insurance, and armyidentification, the troopers—several squad cars had arrived by now—asked to search his car. Sergeant Gerald politely refused; after answering numerous questions, Sergeant Gerald asked many times that the officer in charge call his commanding officer at his base. The highway patrol officers refused each request. Instead, the police put Sergeant Gerald and Gregory into a squad car, turned off the air conditioning, and turned on the car's fan, which blew suffocatingly hot air into the vehicle; they warned Sergeant Gerald and Gregory that the police dogs present would attack them if they tried to escape.
When Sergeant Gerald still refused to allow them to search his car, the troopers told him that Oklahoma statutes allowed them to search (a blatant misstatement of the law), and they had a drug-sniffing dog search the vehicle. Sergeant Gerald knew something about these animals; as part of his army duties, he'd worked with military police officers using drug-detection dogs. The dog never gave any signal that it smelled drugs, but the troopers told Sergeant Gerald that the dog had "alerted" to the presence of narcotics and that they were going to search his car.
For what seemed like hours in the oppressive heat, Sergeant Gerald—now in handcuffs in the backseat of a patrol car—watched as officers used a variety of tools to take apart door panels, consoles, even the inside of the car's roof; at one point they announced that they had found a "secret compartment" in the car's floor. (It was actually a factory-installed footrest.) The troopers attempted to block his view of the search by raising the hoods on their vehicles, and one of them deactivated a patrol car video-evidence camera. They went through every item in the luggage, questioning Sergeant Gerald about Gregory's plane tickets home, which they found in one of the suitcases. (Gregory lived with his mother in northern Indiana, and Sergeant Gerald planned to put him on a plane home after the reunion.) Meanwhile, Gregory was moved to another police car against his father's express wishes; he was made to sit in the front while a dog barked and growled at him from the backseat and a police officer asked him about his father's "involvement" in drug trafficking.
After two and a half hours—and no recovery of any drugs—the police released Sergeant Gerald with a warning ticket. When he asked them what they planned to do about the mess they had made of his car and his personal belongings, they gave him a screwdriver. Their parting words to him: "We ain't good at repacking." Damage to the car amounted to more than a thousand dollars.
Sergeant Gerald filed a lawsuit to contest his mistreatment. Although he has little taste or desire for litigation, he felt he owed it to his son, Gregory, to show that people who have power cannot abuse others with impunity. "I'm an authority figure myself," Sergeant Gerald says. "I don't want my son thinking for one minute that this kind of behavior by anyone in uniform is acceptable." The lawsuit ended with a settlement of seventy-five thousand dollars paid to Sergeant Gerald and Gregory, even as state officials still denied any wrongdoing. "I think I serve my country well," Sergeant Gerald said. "I never want my son to see racism like this happen." Gregory, he said, remains "scarred" by the experience.
Judge Filemon Vela
In 1980, President Carter appointed Filemon Vela United States District Judge for the Southern District of Texas. Vela had been an elected state judge for six years before that, following a career in private practice. Judge Vela's chambers are in Brownsville, Texas, just across the Rio Grande from Matamoros, Mexico. Brownsville has a long history of connection with Mexico; many of its 130,000 citizens are of Mexican descent. Judge Vela's own great-grandfather came to Texas from Mexico in the 1860s. People know Judge Vela not only for what he does in his courtroom, but also for his activities in the community. His bedrock beliefs in education and straight talk led him to help organize and direct a program in which young male and female convicts serving drug sentences come to local high schools to tell the students how involvement with drugs and violence stole their futures. Judge Vela plays the Ted Koppel role in these sessions, asking the inmates about everything from their fear of prison rape to their shame at having embarrassed their families. Judge Vela's wife, Blanca Vela, is the mayor of Brownsville; between their friends, families, and their many personal and professional acquaintances, they know almost everyone in the city who is involved in politics and civic life.
In 1997, the area around Brownsville became the focus of intense immigration enforcement. "Operation Rio Grande" increased the number of agents in the area from seven hundred to twelve hundred by the end of 1999 and poured sophisticated equipment and resources into the effort. The stepped-up activity paralleled similar operations in California, West Texas, and other illegal immigration hot spots. The result was a strong, proactive Border Patrol presence, enough to affect almost everyone of Mexican descent.
During the summer of 1999, Judge Vela and three members of his staff drove to Laredo, one of the cities in south Texas where Judge Vela holds court on a regular basis. The four rode in a Ford Explorer. A Border Patrol agent, who'd been sitting in a vehicle parked next to the side of the road, pulled them over. The agent asked Judge Vela and the others in the car about their citizenship. After they had answered, Judge Vela asked the agent why he had stopped the car. "He said he stopped us because there were too many people in the vehicle," Vela says, though the Explorer could certainly have held more passengers. Only then did Judge Vela tell the agent who he was; he also said that he felt that the agent did not have legal grounds to stop them. Though the agent quickly ended the encounter, telling Judge Vela and his staff they could go, Vela made a complaint to the officer's superiors—not so much about the conduct of the particular officer involved but rather about the practices and policies that led him to make an unjustified stop. As a judge, he was keenly aware that for any search that uncovers contraband to "stand up in court," the stop of the car that led to the search had to be legal. If the stop was illegal, a judge would have to throw out the evidence—and a criminal would go free. It's not at all surprising that Judge Vela's complaint was taken seriously by the Border Patrol; he received assurances that Border Patrol agents would get more training and education to teach them to stop motorists only with a legal basis.
Almost exactly a year after his first encounter with the Border Patrol, Judge Vela was again on his way to Laredo to preside in court, driving on the same road, this time as the passenger of an assistant U.S. attorney. His staff was riding in another vehicle, traveling along with them. Again, a Border Patrol agent pulled the car over; again, Judge Vela—an American citizen, an attorney, and a federal judge—had to answer questions about his citizenship. Once again, Judge Vela asked why the agent stopped them. The answer this time: the car had tinted windows. Judge Vela filed another complaint, but he was not surprised that a second incident had occurred.
Judge Vela talks about these experiences with candor and a touch of humor. He feels that although it is important to speak out, he cannot allow himself to be defined or embittered by what has happened. "If I ever catch myself being affected by these kinds of things, I should not allow myself to sit [as a judge]," he says. Yet it is clear that these experiences have confirmed for him that everyone in the Hispanic community is a target of immigration enforcement, regardless of whether they are citizens, or of their status or station in life. "If they stop us ... we who are attorneys, we who study law ... then my goodness, what will they do to persons who do not have our place?" he wonders. "If they can do it to you and me," he says, referring to himself, his staff, and the assistant U.S. attorney who were with him, "who won't they do it to?" Vela has taught American law and constitutionalism on behalf of the United States government to attorneys, judges, and other officials all over the world, particularly in Latin America, and he believes with all his heart that the United States and its Constitution are something special, something unique—something worth preserving. "But if you let these things happen, it will deteriorate." He worries that something is badly out of balance. Another Hispanic judge in Brownsville, who has also experienced the Border Patrol's tactics firsthand, puts it this way: "It feels like occupied territory. It does not feel like we're in the United States of America."
Minhtran Tran and Quyen Pham
With school out for the year, Minhtran Tran and Quyen Pham went shopping one morning at a strip of stores in Garden Grove, a city of approximately 150,000 in Orange County, California. Neither girl, both fifteen-year-old honor students, had a police record or had had any contact at all with law enforcement. When they decided to leave and went to a pay phone outside the stores, police from Garden Grove's gang suppression unit drove up, got out of their cars, and confronted them and a third young Asian girl. The police accused them of making trouble and asked them whether they belonged to a gang, allegedly because they were wearing gang clothing. Officers then put the three girls up against a wall and took photographs of them with a Polaroid camera. None of the girls consented; in fact, the police never asked for their permission, let alone the permission of their parents. The "gang attire" they were alleged to have been wearing could have described the clothing of a million other teenagers that day: form-fitting shirts and oversized baggy pants. The police also took down information from the girls, including height, weight, age, hair and eye color, their home addresses, and the names of the schools they attended.
Minhtran Tran and Quyen Pham may have felt disturbed by their treatment that day, but they received a worse shock later. Other kids they knew who went to the Garden Grove Police Station later that day told the girls that they saw the Polaroid pictures the police had taken of them pinned up on a prominent bulletin board. The girls found this hard to understand; police had not charged or cited them, and they hadn't done anything. They felt that the police had labeled them criminals and treated them as gang members because they were Asians dressed in a certain way. Eventually, along with other young Asian Americans, the two girls became the plaintiffs in a lawsuit against the Garden Grove Police Department.
The photographing of the high school honor students by police did not happen by accident. Rather, it came about as part of a set of practices put in place as a deliberate effort to fight gangs in California. With an influx of Asian immigrants to the West Coast over the last twenty-five years, including refugees from Southeast Asia, the region's Asian population has surged. The growth of any immigrant population typically contributes to the problems one customarily finds in any city or suburban area, including crime and gangs. The Asian population is no different, despite the model minority stereotype, and in the early 1990s southern California communities began to make a concerted effort to combat what they saw as a rising menace.
One of the first examples of the effort came in a thirty-page report, entitled "Asian Gangs in Little Saigon: Identification and Methods of Operation." The document, written by Detective Mark Nye of the Westminster Police Department, explored many aspects of Orange County's Asian youth gangs, from what they did to how they dressed to which cars they drove. The report discussed many different demographic groups, including female gang members. Nye warned that "female gang members in some cases dress very similar to male gang members. They will wear baggy, loose fitting clothing, baggy pants, oversized shirts, usually untucked, and in some cases baseball caps." (Parents will recognize this description of clothing as the nearly ubiquitous uniform of the American teenager—Asian, African American, Hispanic, or white.) Female members of Asian gangs, Nye said, looked enough like their male counterparts that they "can be mistakenly identified as males." And in a catch-22 that makes it difficult to see how any young Asian woman could avoid being labeled as a gang member, Nye said that Asian girls who did not dress in typical gang attire were really just in "disguise."
In the early morning hours of a Monday in May 1992, Robert Wilkins and three members of his extended family were driving to Washington, D.C., from Chicago. The four, all African Americans, had traveled together to Chicago a few days before for the funeral of Wilkins's grandfather, the family patriarch. As they drove along an interstate highway outside of Cumberland, Maryland, a Maryland State Police car pulled them over. Wilkins's cousin had been at the wheel; when Wilkins noticed that the stop had lasted some time and that the trooper had brought his cousin to the rear of their rental car, where he could not be seen, Wilkins and his uncle got out to see what was happening.
Wilkins's decision to get out of the car and investigate made perfect sense. He had exactly the right training to deal with a situation like this. A graduate of Harvard Law School, Wilkins was himself a criminal defense lawyer. He practiced with Washington, D.C.'s Public Defender Service, one of the most highly regarded public defender offices in the nation. Wilkins had considerable seasoning not only in the ins and outs of criminal and constitutional law, but also in the nuances of police tactics and street stops. He was a skilled trial lawyer, accustomed to speaking his mind in court crisply, authoritatively, and carefully, even though he was a soft-spoken person. He also had considerable experience dealing with police officers.
Wilkins's cousin, who had been driving, told him that the trooper wanted consent to search the car. It was true; the trooper showed Wilkins a consent-to-search form—a piece of paper that, if signed, would indicate that the trooper had obtained voluntary consent to a search of the car. "I explained to him who I was and that I was a public defender in Washington, D.C.," Wilkins said, "and I understood clearly what our rights were and what his rights were, and that we didn't want to have the car searched." The trooper's reply, though perhaps showing a lack of understanding of the law, was just as clear as Wilkins's statement had been. "He looked at me," Wilkins said, "and he said, `Well, if you don't have anything to hide, then what's the problem?'"
Undoubtedly, most ordinary people would have given in to the officer's demand at this point, but Wilkins was not so easily intimidated. "I thought to myself that this is the exact, most inappropriate response that the law enforcement officer can give," he said. Just asserting your rights "shouldn't make you suspicious." Wilkins held firm; he told the officer that he and his family wanted to be left alone.
The trooper seemed genuinely puzzled and surprised. Giving the trooper credit for frankness, Wilkins remembers his explanation. "He said, `Well, this is routine, no one ever objects.' I said I don't know what other people do and that may be the case that nobody else does, but we object." The trooper, perhaps sensing that he was not going to get to search the car the easy way, began to play hardball. He told Wilkins that he and his family would have to wait for a drug-sniffing dog. Wilkins continued to stand his ground, calmly but firmly. He told the trooper that United States v. Sharpe, a U.S. Supreme Court decision, said that he could not detain Wilkins and his family without some fact-based suspicion, and he asserted that there was nothing even remotely suspicious about the family. Though Wilkins clearly had the law on his side, the trooper didn't care to debate the issue. He told Wilkins that these searches were "just routine procedure" because the police had been having "problems with rental cars and drugs." (Wilkins and his family were driving a Virginia-registered rental car; the license plate, with its first letter R, showed this.) "He wasn't rude, he was firm," Wilkins recalls. "He just made clear, `Look, you know, this is procedure.... You're gonna have to wait here for this dog.'" Even offering to show the trooper the program from his grandfather's funeral did not change anything. By this time, other troopers had arrived. Though they saw Wilkins begin to write down names and badge numbers on a pad, the troopers were undeterred; in fact, Wilkins remembers that at least one seemed quite amused by his insistence on his rights.
And the way the trooper wanted it was, in the end, the way it went. The family was held until the dog arrived. Despite their strenuous objections, all of them were forced to get out of the car and stand in the dark and the rain by the side of the road as the dog—so reminiscent to Wilkins and his family of the dogs turned loose on blacks in the South by police in civil rights confrontations—sniffed every inch of the exterior of the car. And only after this careful search turned up nothing were they allowed to leave—with a $105 ticket, though the trooper had originally told them they would receive only a warning. It was only later that Wilkins learned he'd been stopped because of a written profile (prepared by the Maryland State Police) that described him perfectly—a black male in a rental car.
All four of these stories may sound like egregious examples of police run amok, the work of rogue officers. But the truth is that these situations were the result of a well-known, well-used law enforcement technique that has spread all over the country. It has become known as "racial profiling"—and it describes life for millions of Americans who happen to be black, brown, or Asian. What happened to Sergeant Gerald, Judge Vela, Minhtran Tran and Quyen Pham, and Robert Wilkins is not uncommon at all among people like them. They have lived with these practices for many years—even if the rest of the nation has become aware of racial profiling only recently.
Racial profiling grew out of a law enforcement tactic called criminal profiling. Criminal profiling has come into increasing use over the last twenty years, not just as a way to solve particular crimes police know about but also as a way to predict who may be involved in as-yet-undiscovered crimes, especially drug offenses. Criminal profiling is designed to help police spot criminals by developing sets of personal and behavioral characteristics associated with particular offenses. By comparing individuals they observe with profiles, officers should have a better basis for deciding which people to treat as suspects. Officers may see no direct evidence of crime, but they can rely on noncriminal but observable characteristics associated with crime to decide whether someone seems suspicious and therefore deserving of greater police scrutiny.
When these characteristics include race or ethnicity as a factor in predicting crimes, criminal profiling can become racial profiling. Racial profiling is a crime-fighting strategy—a government policy that treats African Americans, Latinos, and members of other minority groups as criminal suspects on the assumption that doing so will increase the odds of catching criminals. Many in law enforcement argue that it makes sense to use race or ethnicity in criminal profiles because there is a strong statistical association between membership in minority groups and involvement in crime. Having black or brown skin elevates the chances that any given person may be engaged in crime, especially drug crime, the thinking of police and many members of the public goes. The disproportionately large number of minorities reflected in arrest and incarceration statistics is further proof, the argument continues, that skin color is a valid indicator of a greater propensity to commit crime. Supporters of racial profiling arrive, therefore, at the conclusion that focusing police suspicion on blacks, Latinos, Asians, and other minorities makes perfect sense. Racial profiling is nothing more than rational law enforcement.
If racial profiling is what directs police suspicion at minorities, it is high-discretion police tactics that put these suspicions into action, turning profiles into police investigations. These high-discretion methods allow police to detain, question, and search people who have exhibited no concrete evidence of wrongdoing—something the law would almost never otherwise allow. But thanks to the U.S. Supreme Court, which has widened the permissible scope of police discretion and vastly increased law enforcement power at the same time that profiling has come into wide use, these tactics are all perfectly legal. For example, police officers can use traffic enforcement as a legal excuse to "fish" for evidence, even though officers have observed no criminal conduct. Officers can also ask for "voluntary" consent to search, without even a whisper of a reason to think the citizen asked has done anything wrong. And officers can also "stop and frisk" pedestrians without the probable cause they need in other circumstances.
Taken at face value, we could say that racial profiling is morally and ethically wrong. It is clearly unconscionable to treat an individual as a criminal suspect simply because a small number of individuals from the same racial or ethnic group are criminals. But in a society dedicated to equal justice under law, such a practice also undermines our commitment to individual civil rights. Enforcing the law on the basis of racial and ethnic calculations therefore also offends the Constitution. All Americans are guaranteed "the equal protection of the law"; there are few values closer to the core of our political culture. Enforcing the law in a racially or ethnically biased way violates this central principle.
Excerpted from PROFILES IN INJUSTICE by David A. Harris. Copyright © 2002 by David A. Harris. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
|Ch. 1||Profiles in Injustice: American Life Under the Regime of Racial Profiling||1|
|Ch. 2||Profiling Past and Present, and High-Discretion Police Tactics||16|
|Ch. 3||Profiling Unmasked: From Criminal Profiling to Racial Profiling||48|
|Ch. 4||The Hard Numbers: Why Racial Profiling Doesn't Add Up||73|
|Ch. 5||The Costs of Racial Profiling: Casualties and Collateral Damage||91|
|Ch. 6||It's Not Just Driving While Black: How Profiling Affects Latinos, Asians, and Arabs||129|
|Ch. 7||Meeting the Challenge of Racial Profiling||145|
|Ch. 8||A Case Study: How One Police Agency Changed for the Better||208|
|Ch. 9||Racial Profiling After September 11, 2001: New Reality, Same Problems||223|
|Ch. 10||Conclusion: The Self-Fulfilling Prophecy and the Future||241|