“Racial profiling” has heated up again, and that’s bad news for the war on terror. Maryland, New Jersey and California -- key battlegrounds in homeland security -- have recently taken measures against the alleged bias of their police officers. Ironically, such actions will cripple the unbiased policing that could prevent the next terrorist attack on U.S. soil.
It is widely assumed that racial profiling is both common and well documented. In fact, the evidence for it is weak. Studies typically compare police enforcement data -- stops, searches or arrests, for example -- with a population benchmark. If the rates of stops or arrests for minorities are disproportionate to their share of a population, critics conclude that the police must be singling civilians out on the basis of race, not behavior.
Such an analysis would make sense only if lawbreaking were spread evenly across the population. It is not. Disparate crime rates do not mean, however, that the police routinely use race to find criminals -- or should. Officers observe a wealth of nonracial cues to determine whom to approach. Some of these cues are actual violations of the law, such as speeding or vehicle equipment violations. Others raise a suspicion of criminality -- resemblance to a wanted perpetrator, for example, or furtive movements, or a jerk of a waistband to conceal a gun. During a car stop, the lack of agreement among a vehicle’s passengers about the purpose of the trip -- or even about each other’s names -- may suggest drug trafficking.
Not everyone who acts suspiciously is breaking the law, but most people who are breaking the law act suspiciously. Given that crime rates differ greatly across races, so will such conduct.
Officers responding solely to behavioral cues or crime reports will therefore not stop, search or arrest a racially proportionate sample of the population. Undoubtedly some individual officers have used race as a shortcut to finding lawbreakers, but there is no evidence that this lazy and unprofessional practice is systemic. The dangerous flaw of current racial profiling analysis is that it brands police as racists simply for tracking down crime.
To guard against this rigged assumption, an increasing number of states and cities require cops to record their every interaction with civilians -- including the length of a pedestrian or traffic stop -- on the basis of race. If, at the end of the month or year, an officer’s stop or search data do not match population ratios, he will be flagged as a potential bigot. The result? Many officers report avoiding all but the most mandatory and cursory interactions with potential minority suspects. Few cops are willing to jeopardize their careers by asking a few additional questions, even if their experience tells them that further investigation is warranted.
New Jersey, Maryland and California have just increased the risks of proactive policing astronomically. New Jersey has made racial and ethnic profiling a felony. Anyone -- including a gang-banger or a drug dealer -- who claims he was stopped only because of his race can now bring a felony charge against the officer who stopped him. Maryland now compels troopers to hand out instructions for filing racial profiling complaints to everyone they stop. And California has barred its highway officers from conducting consent searches, a vital tool in drug and gun interdiction, on the theory that the officers cannot be trusted to use that power fairly.
The chilling effect of these measures on legitimate police work is incalculable, and the effect on anti-terror investigations is no less dire. On Dec. 14, 1999, a U.S. Customs Service agent asked a man crossing the border from Canada to step out of his car for further questioning. The traveler’s odd itinerary, nervousness and uncooperative behavior had raised the agent’s suspicions. The man -- al Qaeda operative Ahmed Ressam -- bolted. A search uncovered more than 100 pounds of powerful explosives in his car trunk, earmarked, we now know, for blowing up Los Angeles International Airport at the turn of the millennium.
Had the customs officer been faced with the possibility of a felony prosecution or a career-jeopardizing complaint for ethnic profiling, she might have thought twice about detaining the Algerian Ressam, even though the basis for her suspicion was behavior, not ethnicity. Expect such second-guessing in the future. The American Civil Liberties Union is making a “concerted effort” to raise Arab and Arab American sensitivity about “racial profiling,” according to a lawyer with the Northern California branch. Police officers, pursuing legitimate leads or reasonable suspicion, will start to face the same “you stopped me only because I am Arab” charges that they now routinely get from black and Hispanic civilians. They will respond predictably: by keeping to a bare minimum their interactions with people who appear to be of Middle Eastern descent.
Sept. 11 hijackers Mohamed Atta, Hani Hanjour and Ziad Jarrah were all stopped for speeding in 2001 -- Jarrah in Maryland just two days before the attacks. When the next cohort of Islamic terrorists have their inevitable brushes with the police, you can be sure that no matter how nervous or agitated their behavior, under the anti-profiling regime, they’ll be told to get on their way.