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This term has gained a substantial measure of negative baggage in recent years, to the point where it has become almost a buzzword, conveying volumes of information and sentiment by its utterance. Much of this comes from a series of confrontational law enforcement cases and practices that in some instances involved arrests, shootings, and even deaths. Several of these incidents resulted in long and highly publicized trials of police officers, for the base allegation was that minority members of the community had been targeted for investigation or enforcement actions solely, or largely, on the basis of their race.
Other bases for concern in the use of the practice come from studies that tend to show the disparate racial impact of profiling even in the light of protestations that such is not its intent. The Law Enforcement News recently ran an article that recounted some recent examples:5
• A survey by The Tulsa World in May, which found more than one-third of people stopped in 11 Oklahoma counties that were heavily patrolled for drugs were black or Hispanic, although the populations there were overwhelming white.
• Members of Michigan’s Arab-American community are often detained at airports and at the Canadian border, according to a report released in May by the Michigan Advisory Committee to the U.S. Commission on Civil Rights.
• A report using data collected from law enforcement agencies throughout Rhode Island from January 15 through the end of March found that blacks were twice as likely to be searched and released as whites during a routine traffic stop, and three times as likely as whites to be searched and arrested.
• According to the third report by an independent monitor appointed under a 1999 consent decree between the Justice Department and the state of New Jersey, the percentage of blacks and Hispanics arrested on the New Jersey Turnpike was back up to 1997 and 1998 levels—the same rate as before state police officials admitted to racial profiling.
Still other agencies, while emphasizing they never engaged in the practice, restated their concern that race not be used as the basis for any law enforcement
action. The New York Times reported that Police Commissioner Raymond W. Kelly banned the use of racial profiling in enforcement activities, noting he had adopted a similar policy while U.S. Customs Commissioner.6
Concerns about profiling are also not limited to the law enforcement community, although many of them reside there. In a program aired in April 2002, the Religion and Ethics Newsweekly feature of The Public Broadcasting Stations devoted substantial time to private security organizations’ use of surveillance cameras at major events and in public places. Note was made of the use of these devices at events such as the Super Bowl, when screening software was also utilized to match random faces in the crowd against a digitized database of known and suspected terrorists and criminals. While some welcomed the additional and ostensibly nonintrusive level of security this technique provided, others saw in it a disturbing element of Big Brother watching over innocent persons going about their business in a public place. Likewise, an increasing number of urban police departments use cameras to provide continuous real-time surveillance of high-traffic areas. While these departments insist they are looking only for signs of active criminal activity, the same privacy issues are voiced by others who worry about a permanent electronic record being maintained by the government of who was where when, who they were with, and what they were doing.7 Such issues are sufficiently close to matters of profiling that we would be well served to keep them in mind as we examine these techniques.
Most of the public became aware of the positive uses of profiling in the hit movie, The Silence of the Lambs. This film, based on a composite of several serial sexual offenders, among them Ted Bundy, highlighted the work of the FBI’s Behavioral Science Unit, which developed much of the basis for the studied use of profiling in law enforcement. Lest we think profiling is a radical departure for the forensic profession, we should remember that much of the work that Cressey, Albrecht, and Hollinger and Clark did were early attempts at profiling. In seeking to determine the causes and characteristics of fraud behavior, they were also trying to build a model that would have some measure of predictive or heuristic value. It is here that the problems with profiling usually arise.
If we were to conduct a study indicating that many arsons are committed by left-handed redheads, that is well and good—as far as it goes. It says nothing about any particular left-handed redhead and can in no way—and this point cannot be overemphasized—be the sole basis for an enforcement action. In police terms, this is called probable cause. As a patrol officer, I cannot pull over a vehicle on the pure basis that I am bored or because I believe people who drive red cars are up to something. That, simply, is not probable cause, and any resulting arrest (let us say, for the sake of argument, that 200 pounds of cocaine are found in the trunk), will properly be thrown out by the courts.