University Times

Racial or ethnic profiling not only is morally objectionable and undermines public trust in equal protection under the law, it is an ineffective law enforcement tactic, according to a national legal expert and authority on racial profiling.

“I’m here to tell you, if we use racial and ethnic profiling, we will not be more safe, we will be less safe. It will not help, it will hurt us,” said David A. Harris, the Balk Professor of Law and Values at the University of Toledo College of Law and a visiting professor at Pitt’s law school.

Harris spoke here Nov. 1 on “Racial Profiling: A Common Sense Tool of the Post-9/11 World?” – part of Pitt’s Center for Race and Social Problems fall speaker series. The lecture was sponsored by the law firm of Buchanan Ingersoll.

Harris defined profiling as using race or ethnicity as a factor in law enforcement officials’ deciding whom to stop, question or search.

“Before the 9/11 terrorist attacks, 60 percent of all Americans said that racial profiling was widespread, and an almost unimaginable, astounding 80 percent of all Americans believed it should stop,” said Harris, who also is Soros Senior Justice Fellow at the Center for Crime, Communities and Culture in New York.

Since 9/11, however, 60 percent of Americans now believe that racial profiling is a sensible, effective tool to protect airports and expose terrorist sleeper cells in the United States.

“This opinion is not a fringe thing; it’s mainstream,” Harris said. “We’re even told by [the Justice Department] that, after the attack and the declaration of war, no patriotic American should protest this tactic. Why? The 19 hijackers were all young, Arab Muslim men. It makes sense to focus attention on that group to catch the bad guys, right?”

The assumption that racial or ethnic profiling helps police “is held so deeply, so strongly, it’s as though it has been handed down on two tablets from the mountain,” Harris said. “But it’s an important assumption to challenge and now the data are available to do that,” thanks to federal legislation that has led to voluntary profiling data collection efforts in hundreds of police departments around the country.

Drawing on his analysis of New York City police department official reports during the 1990s, Harris discussed testing the assumptions underlying the profiling hypothesis.

“We need to answer two questions: First, is it happening? Is race being used as a factor in who gets stopped by police? Second, Does it help? Does it work to fight crime?”

Following Rudy Giuliani’s election as mayor of New York City, the police department adopted the “broken windows” theory of crime fighting, which in 1994-1995 became written policy in NYC, Harris said.

“The theory says: Go after low-end crime with ‘stops-and-frisks’ in order to take back the public spaces and to get drugs and especially guns off the street,” he said.

Police officers were required to document every stop-and-frisk, recording where the stop happened, the reason for the stop, the race and ethnicity of the person stopped, and whether anything was found in the search – a treasure trove of data regarding profiling, Harris said.

“In New York City, two things happened: The crime rate dropped, although it also dropped in other cities that did not use this tactic, and complaints mounted from minority communities about differential application of the stops-and-frisks,” Harris said.

In the late 1990s, Eliot Spitzer, attorney general of New York state, ordered a study of the 175,000 NYC stop-and-frisk reports during all of 1998 and the first three months of 1999.

Citing the Spitzer study, “The Latino population in New York City is 22-23 percent, but [represented] 32 percent of the stops-and-frisks, a not-quite 50 percent over-stopped rate,” Harris said.

“African Americans are 25 percent of the population, but 52 percent of the stops. In other words, blacks are over-stopped by a factor of 2. Whites are 40-41 percent of the population, but 10 percent of the stops, meaning whites are under-stopped by a factor of 3.”

This does not prove that racial targeting is taking place, Harris pointed out, because there are alternative explanations, including two offered by Giuliani and the city’s police commissioner.

“Giuliani said, ‘It’s not about race, it’s about descriptions,'” Harris said. “‘If a victim says the assailant was black, the police would not stop white people.’

“Does this hold water?” Harris asked. “No. The mayor is wrong. Stops-and-frisks were legal with less than probable cause. These are not public-initiated stops, where the police are given a description of a perpetrator. They are officer-initiated stops, and not based on descriptions of individual crimes,” Harris pointed out.

A second alternative suggests that because police deploy more resources to higher crime areas, which statistically are in minority communities, it is much more likely that a minority person will have contact with the police.

“Does this hold water? No,” Harris maintained. “Stops-and-frisks are not connected to crime rates. Stops happen in white neighborhoods, where blacks ‘appear to be out of place,’ ‘don’t belong’ and so may be involved in crime, the thinking goes. When the police send cars and officers they are not looking for the small stuff, they’re covering the big crimes: arson, murder, armed robbery,” not drug sales on the corner, he said.

“The point is there are no other explanations than that this is a use of race as one factor in deciding to stop and frisk someone,” Harris said.

To examine if profiling works to reduce crime, Harris analyzed the “hit rate,” that is, if a stop-and-frisk where race or ethnicity is targeted leads to an arrest or confiscation of drugs or guns.

“For whites, the hit rate is 12 percent; for blacks, 9-10 percent, and for Latinos, 11 percent,” Harris explained. “You say, big deal: a 2 percent gap. But it’s a percent of a percent you need to look at. Comparing 12 percent to 10 percent means a 20 percent margin of whites over blacks and about a 10 percent margin of whites over Latinos. It is statistically significant. With 175,000 stops-and-frisks, you have a big sample, and that means this is not the result of chance.”

So targeting blacks and Latinos for stops actually impedes police efforts, Harris said, because there is a significantly higher hit rate with stopping whites.

“Let me tell you what I’m not saying,” Harris told the audience. “I’m not saying that the crime rate among blacks or Latinos is lower than among whites, because it’s not. That’s a disturbing fact, but it is a fact. I am saying you can’t catch [criminals] this way.

“I’m also not saying race should never be used,” he continued. “Would you not mention the fact that a person is black on an police APB? It’s one of four important things we notice, whether we do it consciously or not: race, gender, age, and height/weight. Race is a great way to describe someone, but race is a horrible way to predict behavior. When people say racial profiling is a good idea to fight crime, at the very least you can say: ‘You can’t prove it.’ And I’m prepared to say more: Profiling is, in fact, a failed tactic that hinders police efforts.”

Can the same conclusions be applied to al-Qaeda terrorists?

“Behavior, not appearance, is the key to real law enforcement,” said Harris. “How you will detect crime is by behavioral profiling: observing strategic efforts to avoid contact by people carrying weapons, for example.”

If al-Qaeda does have sleeper cells in the United States, they can’t be infiltrated by white officers. “We need intelligence in the sense of public information that comes from community policing, from forming strong relationships of trust. It used to be the beat cop who knew everybody [could expedite] information passed on from citizens,” Harris said.

To build that trust, the police should look to those who know the language and the nuances of the culture that might indicate a problem. “That can only be a Muslim, Arab-American in this country. That’s how the Buffalo cell was exposed: The Arab community told the FBI. You have to have decent relationships, partnerships developed over the years. “I can’t tell you how best to do that,” he continued. “But I sure can tell you how to mess it up: Round them up by the hundreds; don’t give them due process; go interview 5,000 of them in this country; target them all based on their race. This is dumb. It’s a mistake, and the result will be cutting off communication if we continue to use profiling.”

Furthermore, what’s to say the very savvy al-Qaeda is not recruiting people who don’t fit our stereotype, like Reid, the shoe bomber who is a British citizen? Harris asked.

“The government doesn’t want this challenged. [U.S. Attorney General John] Ashcroft says if you disagree with this you’re only aiding the terrorists. We need to question the conventional wisdom. Our safety depends on it.”

-Peter Hart