Racial profiling: A reply to two critics

I Background In an earlier essay, "Racial Profiling," Richard Zeckhauser and I sought to delineate the shape of the moral debate about profiling, to provide conceptual clarification, and to think through some arguments. (1) Since then, Annabelle Lever and Kasper Lippert-Rasmussen have offered thoughtful responses to our article, questioning some of its central points. (2) Although both of them offer insights that advance this debate (some of which we will adopt), this essay aims to defend the main arguments of "Racial Profiling." Because "racial profiling" is a pejorative term that was introduced to criticize police practices, one needs to be careful in stating what is being assessed morally. Three issues are often confused. The first concerns the use of race as an information-carrier for investigative purposes; the second concerns police abuse; and the third concerns the "disproportionate" use of race in profiling. (3) Often, cases that generate discussion of profiling involve obvious instances of police abuse, or of overuse of race, that render superfluous any reflection on conditions under which race might be a legitimate feature of police tactical decision making. It may be true that, given current conditions, it is impossible to use race as an information carrier without encountering massive problems of police abuse. Yet even if this is So, an investigation into conditions under which race could in principle be used is worth our while, in order to understand what are good and bad reasons for or against doing so. Our concern, then, is to assess the use of race as an information carrier in police investigations. We define racial profiling as "any police-initiated action that relies on the race, ethnicity, or national origin and not merely on the behavior of an individual." We ask: Are such actions justified under conditions that could plausibly arise? (It is in this sense that we ask about the "legitimacy of profiling.") Unlike other definitions of profiling, (4) ours leaves it open whether there are such circumstances. Providing the kind of conceptual clarification summarized in this paragraph was one of our main motivations in "Racial Profiling." I cannot overemphasize the importance of one point that follows from this: when we offer reasons for using race in police tactics, we should not be taken to offer reasons in support of "racial profiling" as it tends to be understood, say, by many journalists, that is, without the kind of distinction of various issues that we have provided. Profiling is peculiar in two ways that make an assessment of its legitimacy different from such assessments in other contexts, especially employment discrimination. First, we are concerned with a fundamental public good (security), and second, situations in which profiling will be used are those in which investigators must make quick decisions about (say) whom to search, or in which large numbers of people are involved--situations, that is, in which not much information is accessible other than an individual's appearance. In other cases (for example, hiring or admissions) more information is available. These two points need to be kept in mind in what follows. The reason why profiling poses a serious moral problem is precisely because of these points. Readers who would want to reject the argument in "Racial Profiling" because they think it licenses conclusions about other scenarios they take to be clearly unwarranted should keep in mind that the presence of these two points will often block such inferences. There is a range of different situations for which questions about the legitimacy of the use of race arise, and whose particular features require equally particular consideration. To mention three paradigmatic cases: there are scenarios in which police employ race and ethnicity in seeking to apprehend individuals who have committed specific crimes; there is racial, ethnic, or nationality screening at airports, widely discussed after 9/11; and there are investigations on highways that rely in part on racial criteria and have as their goal the interception of drug traffic and investigations on streets that have as their goal the discovery of illegal weapons. …