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Friday, May 21, 2010

Racial Profiling Done Right: An Addendum and Response to Comments

The other day, I suggested a method by which law enforcement could use valid statistical inferences from subjects' surface characteristics (like age, gender, race, and so on) to focus their investigative attention without victimizing those who merely shared those surface characteristics, but were individually quite innocent: offer just compensation for those subjected to additional scrutiny and delay.

If that surface characteristic is apparent racial or ethnic background, the position of two main political tendencies in the U.S. is clear: The Left considers it an intolerable intrusion on the innocent which should be banned regardless of statistical validity. Most of the Right basically says "Though cookies if you happen to be (or look like) a member of any group disproportionately involved in criminal activity."

Neither of these positions seems morally or economically tenable. While race enjoys a different status in U.S. law than other surface characteristics,1 the non-legal arguments for and against racial profiling are equally applicable to most other surface characteristics.

If your description resembles that of a recently reported bank robber, you are more likely to be questioned by the police, even though you are entirely innocent. Similar consequences await you if you drive a car resembling the getaway vehicle. And if your identical twin makes the FBI Ten Most Wanted list, you can look forward to years of police interference, even if you are the most law-abiding citizen.

The logical consequence of the Left position is that using any less-than-definite surface characteristic to focus investigative attention on specific subjects is wrong. In short, a law enforcement offer must have proof of specific law-breaking before even questioning anybody, lest an innocent be inconvenienced. Carried to this logical conclusion, the Left position would make police investigation of many or most crimes virtually impossible.

The logical consequence of the Right position is hardly better. If you happen to look like a particular criminal, or even look like you are a member of a group disproportionately involved in crime, you'll just have resign yourself to be hassled by the police more than others for the remainder of your days, even if you have never violated any laws yourself. In fact, you should not even be upset that you (and, depending on characteristic, your equally innocent family and many friends) must bear the cost of the enforcement of laws the benefit (assuming it is a sound law) of which is enjoyed by many others who have to make no similar sacrifices.

In short, the only solution which even remotely approaches fairness, efficiency, and logical consistency is something like the one proposed here.

Let me also respond to two anonymous comments criticizing the anti-tickets.

First, it was suggested that making law enforcement pay for the time they take from private citizens would lead to under-enforcement. That seems unlikely. Remember, the anti-ticket is not a social cost, but purely a transfer. The cost is created by stopping and hassling private persons. The question is whether this cost is better borne by whomever the police choose to stop or by the public. As the benefits of good law enforcement investigation accrues to the public (mostly, local) and the decisions whether and how many stops to make are made by public officials (again, mostly local) answerable to the same public, the incentives will only be properly aligned if that same public also bears the cost. If that public decides that the crime reduction caused by certain types of police stops just isn't worth the cost, they should stop. To say that they should continue, but the cost should just be sloughed off by the public onto whomever the police care to stop is perverse.

Second, and this may only be of interest to the legally inclined, it was suggested that the elimination of qualified immunity—a legal doctrine under which individual public employees are not liable for damages caused by their violation of the Constitution, unless it was or should have been extremely clear to them that their course of action was unconstitutional—would be a better solution than the anti-ticket. While elimination of qualified immunity may indeed be a good idea (the author is inclined to think so), it would hardly solve the racial profiling issue for a whole host of reasons:

  1. Racial profiling, that is making law enforcement decisions in part on the basis of ethnic appearance, is—contrary to carefully stoked public perception—not unconstitutional (or even generally illegal). See, e.g., U.S. v. Vite-Espinoza, 342 F.3d 462 (6th Cir. 2003) (and cases cited therein).
  2. Even if racial profiling was unconstitutional, it shouldn't be. Ethnicity is a bit of available and statistically valid evidence in many circumstances faced by law enforcement officers. To discard it would cause either more innocent people to be hassled, more genuine criminals to go unpunished, or most likely a combination of both. And anybody who argues that it is nevertheless so morally distasteful that it should never be engaged in should also offer an explanation why the same does not hold for the at least equally ubiquitous law enforcement practices of gender and age profiling.
  3. Even if racial profiling was unconstitutional, enforcing that right via law suit against individual police officers is almost certainly useless. Very, very few people have time that is so valuable that it would be worth the enormous legal costs of bringing a suit for a lost quarter hour. And in that rare case that the damages would be so large as to justify the legal fees, the individual law enforcement officer (that is, the person against whom a suit would be made more winnable by the elimination of qualified immunity) would be nearly judgment proof.
  4. Even if racial profiling was unconstitutional and there were no legal fees, any case would have to rest on proof that the individual law enforcement officer considered race, among other factors, in making the stop or arrest. Without a confession or other extraordinary stupidity, that is going to be nearly impossible to prove in any given case.
  5. Finally, even if racial profiling was unconstitutional, there were no legal fees, and the plaintiff has bullet-proof statistical evidence of racial discrimination, any case would still likely be lost. Assume that the plaintiff could prove using a vast statistical study (financed somehow and with the data collected without cooperation of a likely hostile police department) that all else being equal members his or her ethnic group were stopped 50% more often than others behaving in an identical manner. Such a plaintiff would (and should!) still lose. Even if there is a 50% increase in stops due to racial profiling, two-thirds of those stopped would have been stopped regardless. Hence, it is more likely than not that any individual plaintiff would have been stopped anyway and hence suffered no damages due to racial profiling.

Some of the problems of statistical proof and legal financing could be solved by a class action suit. But what would be the remedy in such a case? If you believe that racial profiling is or should be per se unlawful, there could be an injunction. Even in that case, it is hard to see how that injunction could be enforced without a racial quota system for stops and arrests, a measure which even most opponents of racial profiling would blanch at. And if you believe that there should just be money damages for stops, why not skip the whole rigmarole of a law suit and achieve the same end more simply through the anti-ticket?

1 Among the surface characteristics frequently used by police, gender comes the closest to race in legal status. Under the U.S. Supreme Court's interpretation of the Constitution, gender discrimination is nearly as difficult to justify as racial discrimination (i.e., nearly impossible) and all progressive legal scholars I've ever discussed the subject with support closing whatever gap there may yet exist. That leaves the issue, alluded to before, of why racial profiling is a cause célèbre to the Left, but the at-least equally prevalent gender profiling is a non-issue.