Read an Excerpt
Understanding Racial Profiling
In 1959, a ten-year-old boy named Sam was riding his new bicycle through the racially mixed town of Hempstead, Long Island. It was a beautiful spring day for the little boy, who had waited since his January birthday to ride his birthday present from his mother. It was the hottest bike out on the market at the timea Lemon Peeler.
Sam was down the street from his home when suddenly a police car pulled up beside him.
"Where did you get that bike?" one of the policemen asked as he rolled down his window.
"My parents gave it to me for my birthday," the little boy answered.
"You're lying," the policeman snapped. "This bike is too expensive for you to have."
"Get off the bike," commanded the other officer. They got out of the car and surrounded the little boy. "We got a report that this is a stolen bike."
"Not this bike," Sam responded. "My mother bought me this bike."
"You stole that bike."
"No I didn't."
"You live around here?"
"Are your parents home? We're going to take you home and ask your folks."
The two white officers placed the bicycle in the trunk of the police car, put Sam in the backseat and drove him home. It was a scary ride for the boy. He had never been treated like a criminal before.
Sam's mother answered when the police officers knocked on the door.
"Did you buy your son this bike?" one of the officers demanded.
"Yes, and what did my son do?" she asked.
"We got a report that the bike was stolen."
"I bought him this bike. Why are you harassing my son?"
Instead of getting into an argument, the officers took his mother's word and walked away without an apology to Sam or his mother. Sam hadn't done anything illegal, and there was no reason for the police to stop him. So what had happened?
This is a classic example of racial profiling, the tactic of stopping someone only because of the color of his or her skin and a fleeting suspicion that the person is engaging in criminal behavior. It's generally targeted more toward young black American men and women than any other racial group, although Asians, Hispanics, and even young whites with long hair and a hip-hop flair about them get profiled more every day. It doesn't matter if there is "probable cause" or not in many instances. A police officer or a security guard or anyone in a role of authority can detain and question people, and some believe that racial profiling is a justified form of law enforcement and detective work, while others vehemently disagree. Whether or not you believe that racial profiling actually exists, the practice has been proven over and over again. The attorney general's office of New Jersey, the state whose practices sparked national attention on the subject, acknowledged that racial profiling did exist among its highway state troopers. And the latest edition of Webster's New Collegiate Dictionary includes an entry for the term. It defines racial profiling as "the mass police policy of stopping and searching vehicles driven by people of particular races."
Racial profiling may be a relatively new term, but it's definitely an old concept. Tracey Maclin, a professor at Boston University School of Law, says that the problem of "driving while black" can trace its historical roots to a time in early American society when court officials in cities like Philadelphia permitted constables and ordinary citizens the right to "take up" all black persons seen "gadding abroad" without their master's permission. This means it transcends law enforcement and includes everyonepeople like store clerks, bank tellers, security guards, and even taxi drivers.
We must ask ourselves: Is racial profiling a subtle form of legal prejudice? Or is it a legitimate way to stop crime before it takes place? And what are the consequences of racial profiling for African Americansor Asians, or Middle Eastern Muslims, or even Hispanic and Latinosas a matter of local, state, or federal government practice? In 1976, the U.S. Supreme Court supported the actions of the U.S. Border Patrol agents who selected cars for inspection in Southern California partly on the basis that drivers were of Mexican descent. The Supreme Court maintained that since the intrusions by the U.S. agents on selected drivers were "quite limited" and only involved "a brief detention of travelers during which all that is required...is a response to a brief question or two and possibly the production of a document," the practice was upheld. And recently in upstate New York, the U.S. Court of Appeals for the Second Circuit ruled that police officers did not violate the Constitution when they stopped every black man in Oneonta on September 4, 1992, after a seventy-seven-year-old white woman said she had been attacked in her home by a young black man. The woman said the burglar had cut himself on the hand, and the three-judge panel ruled that the police sweep of blacks was constitutionally permissible and not racially discriminatory because the police were acting on a description that included more than just the color of the alleged assailantthat is, the cut on the hand.
The controversy surrounding racial profiling is intense. In the national spotlight are two New Jersey state troopers, John Hogan and James Kenna, both of whom were indicted on September 7, 1999, on attempted-murder and assault charges resulting from a shooting during a routine traffic stop on the New Jersey Turnpike in 1998 that left three of the four unarmed young black and Hispanic men involved seriously wounded. The troopers were also indicted earlier that year on nineteen misdemeanor charges of falsifying their activity logs to conceal the disproportionate number of minority drivers they were accused of stopping on the highway.
From a legal point of view racial profiling is tricky because it can be difficult to prove. Seldom do investigators recover a smoking gun with fingerprints on it. This is why a national movement has been launched by politicians of color and civil-rights leaders to mandate that law-enforcement agencies keep statistics of whom they are stopping, questioning, detaining, and searching. Black leaders say it's the only way to be sure that people of color are not being stopped because of their skin. Robert Wilkins, a Washington, D.C., public defender, said he had discovered in his lawsuit with the American Civil Liberties Union (ACLU) against the Maryland State Police that on Interstate 95 in Maryland, 70 to 75 percent of the people being pulled over and searched were African Americans, although they made up only 17 percent of the total drivers. Unfortunately, only recently have a handful of police agencies started to keep records of traffic stops according to race, gender, and age. Several attempts in Congress to make a federal law requiring law-enforcement agencies to keep such records on all traffic stops were defeated in the Senate. We'll talk more about that later.
Racial profiling is tricky in other areas, too. On one hand, the courts say that large groups of American citizens should not be regarded by law-enforcement officers as presumptive criminals based upon their race. On the other hand, the courts acknowledge that facts should not be ignored simply because they may be unpleasant. Randall Kennedy, a professor at Harvard Law School, explains that society can't pretend that blacks and whites commit crimes or are victims of crime in exact proportion to their respective percentages of the population.
"Statistics abundantly confirm that African Americansand particularly young black mencommit a dramatically disproportionate share of street crimes in the United States. This is a sociological fact, not a figment of the media's (or the police's) racist imagination." In recent years, for example, victims of violent crime report blacks as the perpetrators around 25 percent of the time, although blacks constitute only about 12 to 15 percent of the nation's population. This raises an interesting question that must be addressed, too. One answer is to say racial profiling is wrong when race is the only factor for stopping a person but not when race is taken into consideration alongside a host of other observed criminal behavior. Is the answer really that simple?
To some degree, we all participate in our own form of profiling, our own form of assuming that a person is a particular way only because of that person's appearance, race, or manner of dress. By no means are law-enforcement officers the only ones who profile. Security personnel in the local shopping mall are potential racial profilers. The salesclerk behind the counter in the local clothing store is a potential racial profiler. Taxi drivers engage in racial profiling every time they drive past a black person hailing a cab to pick up a white person down the street, and if you've talked to any young black New Yorker, you'll know that experience happens to someone, somewhere every night. Just ask actor Danny Glover, who in the fall of 1999 filed a formal complaint with New York City's Taxi and Limousine Commission because of one too many such experiences. When does this cross over into criminal behavior?
It doesn't matter if the year was 1808, 1909, 1959, 1970, or 1998, prejudices and stereotypes among the races will always exist. According to the Honorable Renee Cardwell-Hughes, of the Philadelphia Court of Common Pleas, the act of stopping minority motorists who drive luxury cars in the assumption that they are using the highways to smuggle drugs, or stopping an individual under the assumption that he is a criminal is a violation of the Fourth Amendment to the Constitution"the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched and the persons or things to be seized." Judge Cardwell-Hughes strongly disagrees with the decisions handed down by the Supreme Court in several important cases involving racial profiling. She says that the Fourth Amendment's protection is shrinking. Law-enforcement officers use a profile known as CARD, an acronym for class, age, race, and dress. Any lower-class, young black person wearing baggy jeans, a T-shirt, and a backward-facing baseball cap can expect to be stopped by a police officer or followed around upon entering an upscale department store in an upscale neighborhood. Unfortunately, this describes a hundred thousand young people on any given day in any given city. And as more and more young white people adapt the dress and style of today's inner-city black kids, they, too, will become a small minority of white people who get racially profiled.
Stopping people of color along Interstate 95 in New Jersey on the suspicion that they are trafficking in illegal drugs has been going on for years. But New Jersey should not be singled out. We focus on New Jersey state troopers in this book because they have been notorious in the practice of racial profiling. By examining that state, we understand racial profiling as it exists in the rest of the country.