NMTP Newsletter - Volume 6-3

PRESIDENT'S COLUMN Guy O. Seymour, Ph.D.
RACIAL PROFILING IS ALIVE AND WELL: U.S. RESIDENT - BEWARE!

(A version of this article was presented at the Midwinter Meeting of the National Association for State Courts/National Association for Court Management, Williamsburg, VA March 2002)

Many people thought it could never happen in these United States of America, Land of the Free and Home of the Brave. Hundreds of young men rounded up in the dead of night or asked to come in to police stations and then arrested, moved to unknown locations, held without access to lawyers or even notice to friends or family. Individual young men of dark skin wearing beards stopped by police on the roadways and their vehicles recovered days later with no idea as to the whereabouts of their former occupants, drivers and passengers alike. And actually that happened in Santiago, Chile and in Montevideo, Uruguay. But it also happened in the United States of America after September 11, 2001. For years Racial Profiling, especially Driving While Black (DWB), has held the attention of responsible government officials and in 2000 then-Attorney General Nominee John Ashcroft as well as President George W. Bush made public pronouncements that Racial Profiling by police would stop. Legislation was passed, funds set aside and policies were promulgated toward the goal of training and monitoring police agencies to stop the practice of Racial Profiling. In Massachusetts as well as in several other states, laws were passed to monitor the behavior of police officers in their contacts with the public to ensure that race was not being used as a proxy for criminality. Then on September 11, 2001 the whole world changed. The debate about racial profiling shifted to examining how best to use it to identify terrorists, not how best to stop law enforcement from illegally targeting innocent people. With the new emphasis on finding and apprehending terrorists before the next spectacular event occurs on U.S. soil, the concerns about constitutionally-protected civil liberties have greatly diminished. Both President Bush's press secretary and Attorney General Ashcroft himself have painted those who speak to insist that civil liberties be protected as people who "aid the terrorists…and give ammunition to America's enemies and pause to America's friends". Legal scholars say that this is a direct violation of the First Amendment of the U.S. Constitution. As far as Racial Profiling goes, the Department of Justice (DOJ) has rounded up and imprisoned more than twelve hundred men of Middle Eastern descent, asked local police departments to assist in questioning another eight thousand young men from mid-east and South Asian countries who are legal residents or visitors in the U.S.A. and has deported many of those in what appears to be a selective enforcement of deportation.

Because terrorism is not common criminal activity, it cannot be dealt with in the usual crime-solving mode. Moreover, punishing terrorists after the fact is unlikely to stop most future acts of terrorism. The prospect of imprisonment or even the death penalty is unlikely to deter a would-be suicide bomber. As a result, many in law enforcement, indeed many ordinary residents of the U.S.A. believe that discovering terrorist missions and identifying the terrorists prior to the carrying put of the mission is a matter of great urgency. Many of our neighbors believe that if our security is at stake, all tools, including racial profiling, are allowable. Most recently the Israeli Security force consultant to Logan Airport has begun to teach Massachusetts State Troopers how to conduct Behavioral Recognition Profiles of travelers, which some have said is simply racial profiling in blue and gray. As is the case at Logan, one need not consider race to the exclusion of all other factors to be engaged in racial profiling. A profile will often identify several factors: If one or more of the primary characteristics is race, then by definition, it is a racial profile. The problem with racial profiling is that it permits police to look for criminality in the absence of probable cause, and therefore subjects everyone to the invasion of their privacy without their consent.

The most common instance of racial profiling is what has been called "Driving While Black" (or "DWB"). In this kind of profiling police stop motorists on the pretext that they have committed a traffic violation when the actual reason might be the assumption that African-American drivers are more likely than white drivers to be transporting illegal drugs. This assumption over the years has been shown to be the moving cause in a large number of roadside stops.

The question since 9/11 is whether Racial or Ethnic Profiling for Terrorism will be effective. To date there is insufficient data to accurately asses whether terrorist profiling that includes a racial or ethnic factor will be "effective" at preserving safety in the United States. It is clear that most American citizens and residents of all racial groups are innocent of terrorist activity or collaboration with terrorists and felt frightened by the events of September 11. Stopping, interrogating, detaining without counsel or otherwise invading the privacy and liberty of people in any particular, especially racially-identified, group will certainly harm countless individuals who have done nothing to deserve such humiliation. Of course, the idea of using race to determine someone's potential willingness to commit mass murder against Americans is not entirely new. After the Japanese attack on Pearl Harbor in 1941, anyone of Japanese extraction living on the pacific coast of the United States was presumed to be a traitor and accordingly rounded up and incarcerated in what were essentially prisoner-of-war camps. In 1919, just after the First World War, the U.S. Attorney General under President Woodrow Wilson was convinced that the Bolsheviks had bombed his home and caused raids to be carried out against suspected communist sympathizers in more that thirty cities resulting in the arrest of almost ten thousand immigrants and the targeted deportations of many of these persons who had never been charged with any crime. In hindsight, almost everyone agrees that the only real grounds for making treasonous accusations against these Americans was racial animosity and fear.

Most of the men detained in September and October of 2001 have been released as of today. But racial profiling goes on more vigorously than before. The old forms such as pretextual traffic stops and on-the-street "field interviews" or arrests for "quality of life" crimes, such as playing basketball after dark on an unlit neighborhood court, are back in vogue. They never really stopped. The new forms such as conducting neighbor checks whenever middle-eastern looking men move into an apartment to see who their friends and associates are, are being tolerated because we all want security and "if you have nothing to hide, what's the harm done?" Simply put, the denial of equality and of equal treatment on the basis of race or ethnicity is just wrong. As the writer put it, "those who would willingly surrender their freedom in the hope of security deserve neither and often find that they have lost both."

For those of us who believe that multiculturalism is the inevitable destiny, the task ahead includes teaching others, both the creators of psychology and its end-users, such as the police, the FBI and the political leadership, that racial and ethnic profiling is not only wrong but also inculcates an attitude of unhelpfulness to and suspicion of, all government operations. First, though, we must be willing to get off the sidelines and offer our expertise to those who clearly need it. Whether this is through some form of organizational consultation or by the sharing of our experiences in research and practice through Continuing Education offerings for the rest of the Network, it is the actualization of our knowledge that is important.