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## Wednesday, May 19, 2010

### Racial Profiling Done Right

After our most recent excursions into areas of policy where even clear thought fails to readily yield an optimal solution, let's instead wade into a current controversy for which there is a simple solution which ought to be acceptable to all concerned but which never seems to be propounded: racial profiling. That is the practice, often statistically justified, of law enforcement to make discretionary decisions (such as whom to stop, question, or search) in part on the basis of apparent ethnic origin of the subject.

Let's set aside one issue: If racial profiling is used to enforce bad laws, as will arguably be the case under the recent Arizona immigration law, the outcome will be bad. But in this case, that is because the law is bad, and any effective tactic to enforce a bad law should be deemed equally bad. Hence, the argument here is with the law, not the enforcement tactic. So instead let's focus on using racial profiling to enforce otherwise-sound laws, like those against murder, rape, theft, or terrorism.1

Attitudes towards racial profiling generally align along political lines: Conservatives, arguing rightly that racial profiling will often be a statistically valid and efficient way of focusing police resources while minimizing the total intrusion on private persons, mostly endorse it. Modern liberals, arguing rightly that most of the intrusion will be experienced by innocent members of some ethnic groups and that state action conditioned on ethnic status is contrary to this country's stated principles2, are against it.3

But here is a solution which would allow law enforcement to capture the efficiency gains of racial (and other) profiling without victimizing anybody: Just compensate anybody whose time is taken by the government, just as you would if it involved their property. In other words, every time a police officer stops and questions a person or subjects them to additional delay, at the end of the encounter the officer must write a kind of anti-ticket for $X for each minute between the stop and the time the subject is let go (or, upon the development of probable cause, arrested). The subject in turn could turn the ticket to cash at any bank. The beauty of this approach is that it properly socializes a public good, the search for, arrest, and detention of real criminals. But rather than imposing the cost of this public good disproportionately on minorities (ethic, gender, or age) the vast majority of which, including most who are stopped, are entirely innocent, the cost will also be born by the public at large. As a matter of general principle, policies will always be more successfully planned and carefully executed if their costs and benefits are borne by the same entity who controls them. In the case of public safety and police officers, the public at large is already the beneficiary and at least the best candidate for controlling law enforcement policy. As the benefits and control already lie with the public, so should the costs. A few objections against this policy do not hold much water: • The first of these is that it would cost too much. But the policy only costs anything in the most narrow government accounting sense. In the economic sense, it is no cost at all: just a transfer of money from one pocket to another. And in so far as this transfer improves incentives for efficient behavior by law enforcement, there is a general gain in social welfare. It is true that groups who ordinarily get stopped by the police less often (whites, women, the very young and the middle-aged and older) would on average end up with less money in their pockets while those who are stopped often would end up with more. But that is just a question of cost distribution. If those who now pay for police stops find the cost excessive, then it always was—it just previously came out of somebody else's pocket. In that case, police procedure should have been adjusted all along. • The second objection is that it would pay even those arrested and convicted, that is, usually real criminals. That is true, but less significant than it seems. Waiving the anti-ticket if there is an arrest (or allowing any other sort of waiver) would just create too big an incentive for an unethical cop who stopped an innocent to offer an implicit or express bargain: You waive the anti-ticket and I won't fabricate cause for arrest (e.g., break your tail light). As a practical matter, when there is a bona fide arrest and prosecution, the anti-ticket would just be offset against court fees and fines which otherwise would be waived for the typical indigent or judgment-proof defendant. So unless the detention was so long that the anti-ticket would be larger than these fees and fines, there would be no net payment to criminals. And in the rare case of an excessively long detention for a trivial fine smaller than the anti-ticket, a net payment to the "criminal" would not be wrong. • Next, some may complain that this would just be a license for racist police officers to indulge their preference by hassling innocent minorities. Maybe so, but that seems unlikely. The innocently stopped would all be compensated, so this really amounts to no more than a license for racist police officers to hand out free money to ethic minorities—one that is unlikely to be exercised once the cop realizes that is what it amounts to and, even if it did occur, would be less than tragic for its victims. Moreover, the anti-ticket creates its own audit trail. The perhaps mythical, perhaps real racist cop who just likes to inconvenience innocent members of disliked groups to gratify his or her own animus, would quickly run up a large tab of anti-tickets without any record of arrests and convictions to show for it. That should serve as at least some deterrent to such behavior. • Finally, it may be argued that while the anti-ticket could compensate for lost time, there still remains an element of uncompensated emotional or dignitary damage. I am not entirely unsympathetic to this concern. Having been stopped by the police a few times in my life, introspection suggests that given a choice between any plausible amount received for a hypothetical anti-ticket and not having been stopped in the first place, I'd still choose the latter. But then this author is reasonably well off and may be more sensitive to being subject to involuntary questioning than the average person. That said, it seems hard to see how the anti-ticket would not still be a, perhaps incomplete, improvement. There are few ways in which strangers can convey their apologies for having bothered you more convincingly than cold hard cash, going at least some way towards easing the dignitary insult. In addition, any other remedy for abusive police conduct, like unjustified physical assault, would remain in place. The anti-ticket would be on top of such other remedies and purely for the currently uncompensated injury of lost time. The most serious, but hardly insurmountable problem with the anti-ticket proposal is getting the amount right: Too small and there will be no effect; too large and you encourage an industry of people deliberately acting suspiciously while not actually committing any crime in order to profit off the over-generous anti-tickets. What's more the amount cannot be tailored carefully to the situation if it is to remain administrable and enforceable. Anything more variable than a fixed amount per minute of delay would probably be too complicated. That said, an amount on the order of$1/minute of delay seems about right. It would compensate most individuals at a rate higher than their marginal cost of time (that is, at the equivalent of a wage of \$60/hour after tax), while still likely preventing most schemes to be stopped for profit from being lucrative. Perhaps, legal suits should be permitted (by either police or subject) where the plaintiff would bear the burden of proof that the compensation would either be grossly inadequate or excessive in a particular case; given the transaction costs of the legal system, these would presumably be rare.

So what do my gentle readers think?

1 There is the argument abroad that racial profiling cannot work against terrorists. Even though some persons worthy of respect make it, I do not believe that it is a very strong position under real-world conditions. But that is an argument for another post.

2 It is unclear on what principle the at-least equally common and equally justified law enforcement practices of gender profiling (i.e., focusing their attention on men, rather than women, on the basis than men disproportionately commit violent and, to a lesser degree, non-violent crime) and age profiling (i.e., focusing on subjects in the prime crime ages of 15 to 35 years or so) are not equally controversial. Discarding the requirement of principle, one could speculate.

3 It is hardly original, but worth noting that this is an 180 degree reversal from the position generally taken by these two camps when it comes to the distribution of benefits, such as university admissions or hiring. Some modern liberals will quite frankly admit that they feel that the history of this country justifies a thumb on scale for certain previously disfavored, but now favored groups. Hence color-blindness is not a principle for them but merely a convenient stick to beat up policies harming the groups they favor equally conveniently discarded when it comes to policies where it points the other way. This at least has the benefit of honesty. Most conservatives fail to offer even this much of an explanation for their reversal and one cannot help but wonder if their commitment to color-blindness is confined to cases where its absence inconveniences them and theirs.