Ending Racial Profiling in Law Enforcement: Appendix B - The Evolution of Racial Profiling

© 2002 Peter Free

 

Go to: Page 1 ─ Page 2 ─ Page 3 ─ Page 4 ─ Appendix A

 

Appendix C ─ Appendix D ─ Appendix E ─ Footnotes

 

Profiling Began with the FAA

            The evolution of racial profiling from airport to street illustrates a cancer-like spread of an originally bad idea.  The Federal Aviation Administration (FAA) first used profiling to detect potential airplane hijackers in 1968. [91]  It developed a nationally used skyjacker profile based on field studies and tests. [92]  Proactive interventions based on the profile reduced the number of skyjackings. [93]

            Profiling evolved from its FAA origin to application by the Drug Enforcement Administration in airport drug interdiction.  Eventually, it worked its way into ordinary law enforcement, but without being tested for reliability.  The concept was grossly simplified from its airport origins for use on streets and highways.  Reduction in the number of elements required for suspicion meant the technique became no more than an applied form of ethnocentrism.  The discriminatory results were played out among minority groups the national culture ignores.

            The motivation for the transfer of profiling from airport to street use was the war on drugs. [94]  Social passion against drug use, combined with racism, seem to explain why so little attention was paid to ordinary law enforcement's abuse of the profiling concept.

DEA Courier Profiles

            The Drug Enforcement Administration (DEA) began using profiles for intercepting drug couriers at airports in 1974. [95]  The agency allowed a good deal of discretionary slop to slip into the FAA concept.  It did not develop a national drug courier profile.  Instead, individual officers created their own index of suspicious characteristics. [96]  The agents' indices sometimes contradicted each other. [97]

            Courier profiles were used to target certain people for observation and questioning.  If officers remained suspicious after an initial cursory contact, the subject was asked to go to another location for a more detailed inquiry.  There, officers attempted to obtain consent to search person and baggage. [98]

            Though the potential for abuse of discretion is obvious, the large number of courier profile elements may have worked statistically to reduce the number of innocent people questioned.  The courier profile elements included a significant number of informational and observational components.  Information probably available before the subject's arrival at the airport included:

(a) age twenty to thirty-five;

 

(b) travel to or from drug-providing/receiving cities;

 

(c) number of previous trips;

 

(d) short visits;

 

(e) reservations made immediately prior to flight departure;

 

(f) non-stop flights;

 

(g) cash payments;

 

(h) false telephone numbers;

 

(i) solo travel;

 

(j) early travel; and

 

(l) little luggage. [99]

 

Elements subject to observation upon the subject's arrival at the airport were:

 

                        (a) race;

 

                        (b) first or last off the plane;

 

                        (c) nervous;

 

                        (d) hurried walk;

 

                        (e) scans surroundings;

 

                        (f) makes phone call soon after deplaning;

 

                        (g) wears "flashy, baggy, or expensive clothing;"

 

                        (h) luggage has no identification; and

 

                        (i) uses public transport. [100]

            Whether these twenty elements are persuasive can be argued.  What is important is that the protective number of elements was grossly trimmed when profiling was introduced to the street.

Profiling Was Not Properly Adapted to Work Equitably in Different Environments

            Insufficient thought was given to profiling's suitability to surroundings less regimented than those at the airport.  The airport environment is very tightly controlled.  Flight numbers, schedules, passenger names, and methods of payment are easily obtained.  Demeanor and baggage are readily observed.  The physical environment is confined, well lighted, and comparatively slow moving. Ideally, law enforcement can set up interceptions before the traveler arrives at his destination.

            The street environment is much more fluid.  Less traveler information is available.  Only so much can be observed in the time required to initiate a stop on a moving vehicle.  Vehicle registration information is less contextually revealing than ticket information, and there is no way to tell if the registered owner is the one driving the car.  Computer checks for registration and criminal history take time, and they are of little value in building a composite picture of the traveler at the time of observation.

            The street context forces profiling toward much- increased dependence upon immediately observable subject characteristics.  But behavior inside a moving vehicle is difficult to detect.  The highway is also often dark, the speeds high, and the officer's attention diverted by the act of driving.  In the urban street environment, speeds are lower but tumultuous congestion higher.  Available observation time decreases still more from that available on the highway.  Distracting sensory input increases.  Overall, the street/highway context limits an officer's pre-stop investigational power in severe ways.

            In adapting profiling to the street, law enforcement simplified it by reducing the number of required elements of suspicion.  The reduction was so extreme that the technique became another form of racial and ethnic bias.  On the highway, for example, one might observe race, occasionally dress, style of car, license plates, and driving behavior.  Absent a bumper sticker stating, “I’m a drug dealer,” this indicates nothing about criminality.  Whatever practical or legal legitimacy profiling once had, it had now evaporated.

Racial Profiling Resulted from Errors in Logic and Proportionality

            Errors of logic and proportion were made when the FAA profiling technique was transferred to drug interdiction and general law enforcement.  Proponents overlooked the differences between policing contexts.  They ignored differing gravities among the crimes being prevented.  They were insensitive to the rising fraction of innocents caught up in the profiling net as it was extended to street use.  A thoughtful balancing of law enforcement gains against reductions in civil freedoms was not done.  Proportioning the means to the ends got lost in the fervor of the war on drugs.

            Government has a more compelling interest in deterring skyjacking than it does in attacking more ordinary crime.  Skyjacking involves kidnapping large numbers of people in overtly lethal situations.  When the FAA originated its prevention strategy, it was common knowledge that passengers were being killed in skyjack attempts. [101]  The media were filled with images of airplanes under siege.  Passengers boarding planes were arguably willing to trade privacy for security.  None of these considerations apply to airport drug interdiction or to policing the street.

            The use of ethnicity and race as factors in profiling purely for purposes of heightened watchfulness may have made some sense to some people in the skyjacking context at the time the technique was initiated.  In the case of the FAA, the agency was attempting to combat skyjackers who allegedly were consistently of an identifiable race/ethnicity.  Theoretically, like a hypothetical situation in which a group of bank robbers have been described as short, bald, white male body-builders, it makes sense to be on the lookout for someone whose physical characteristics match that description when they arrive at the bank.  Police attention is thereby efficiently focused on that group from which the miscreant will come. [102]

            In the hijacker context, once attention was on the subject at the scene where the crime was likely to be completed, an officer had to review a list of other indicators building suspicion justifying an investigative stop.  Given the gravity of the crime being prevented and the restricted locale, officials and citizens were willing to intrude first and apologize later.

            The use of race and ethnicity as a factor in generating police suspicion in the generalized airport drug interdiction context makes less sense.  Drug couriers come from all races, many countries, and their crimes usually require victims' complicity.  The specificity the FAA might have been able to claim in focusing its attention on certain people intent on pirating airplanes is absent in the drug interception context.

            Taking race/ethnicity into account makes even less sense in ordinary street policing, unless a crime has already occurred and the suspect has been described.  Racial profiling reverses this logical temporal sequence.  It assumes up front that Americans of color are more likely than others to be criminal.  It ignores the fact that the profiling technique usually uncovers comparatively trivial offenses.  It violates the spirit of what American courts originally took to be adequate grounds for investigative stops.  That this is not clearer is due to the courts' class- and race-based refusal to look outward from individual fact situations to the broad social context in which racial profiling is practiced.

 

(This is Appendix B)

 

Go to: Page 1 ─ Page 2 ─ Page 3 ─ Page 4 ─ Appendix A

 

Appendix C ─ Appendix D ─ Appendix E ─ Footnotes