Profiling (including DWB)
‘‘Profiling,’’ as we will see, has evolved from an anticipated and lauded method of criminal investigation to a practice many equate with racism. Tracing the course of this development, it is important to stress three phenomena: the transition from reactive to proactive profiling; the shift away from profiling as the exclusive province of trained experts; and the widening array of criminal activities for which ‘‘profiles’’ have come to be constructed. Let us now consider the original conception of criminal profiling and then the emergence of racial profiling.
Detective novels from the early 1800s (for example, the Sherlock Holmes novels) are appreciated for their detailing of the manner by which inspectors drew inferences from data and demonstrated intuition, insight, and perspicacity as they solved the riddles presented by criminal cases. This was ‘‘profiling’’ in its earliest form—that is, the technique of relying on clues, signals, and a sophisticated understanding of human behavior and tendencies to develop a frame for understanding the features and characteristics of the likely offender.
Criminal profiling as a law enforcement tool in the early part of the twentieth century was predicated on the same skills and abilities. The famous case of the ‘‘Mad Bomber’’ in New York City in the 1940s and 1950s was solved, for example, because Dr. James A. Brussel, a Connecticut psychiatrist, was able to look at the evidence and environment of previous attacks and thus construct a profile that (correctly) predicted the appearance, inclinations, and motivations of the attacker, leading police to narrow their search and eventually arrest the offender. Profiling of this sort was the province of experts, especially members of the Behavioral Sciences Unit (B.S.U.) of the F.B.I.—a group of individuals trained in psychology, criminology, and forensics who focused their attention on only specific types of crimes (for example, murders, rapes, and arson, usually by serial offenders) and responded to criminal activities in a reactive manner—that is, solving crimes that had already taken place.
But a different form of criminal profiling is carried out by police officers, a form that is more experiential (based on their time spent walking the ‘‘beat’’) than scientific (based on academic studies and analysis) and one that is more proactive in nature—positioned to ward off threats and perceive potential dangers before they occur. (See Terry v. Ohio, 392 U.S. 1, 1968, for the Warren Court’s discussion on such police tactics and the constitutional nature of ‘‘stop and frisk’’ practices so long as the officer is able to articulate facts sufficient to demonstrate a ‘‘reasonable suspicion’’ that a crime has occurred or may soon occur.) In this regard, one of the central issues that makes profiling so complicated is that officers of the law are supposed to be observant, insightful, and wary; they are trained to notice things out of place, to rely on their intuition, and to have a heightened sense of suspicion due to their familiarity with the environment and its inhabitants.
One of the ways that such skills can discourage crimes from even occurring is that officers recognize individuals deemed ‘‘symbolic assailants’’ by the criminologist Jerome Skolnick in the classic study, Justice Without Trial. Describing such assailants, Skolnick explains that policemen develop ‘‘perceptual shorthand to identify certain kinds of people as symbolic assailants,’’ or people who ‘‘use gesture, language, and attire that the policeman has come to recognize as a prelude to violence.’’ Thus, criminal profiling in various forms is infused in the history and role expectations of elite forensic experts and ordinary ‘‘cops on the street.’’ But profiling, in practice, was transformed in its extension to new arenas and in response to different criminal endeavors.
Specifically, the ‘‘skyjacker’’ profile was instituted in the early 1970s to prevent airplane hijackings, which had increased significantly. Characteristics drawn from a study of all hijackings allowed a special task force to devise a profile of likely offenders and thereby reduce the number of hijackings by 50 percent the next year. The success of the skyjacker model inspired its application to the ‘‘War on Drugs.’’ In an effort to stem the flow of illegal drugs into the United States through the nation’s airports, the ‘‘drug courier profile,’’ devised by Detroit Drug Enforcement Agency (D.E.A.) Special Agent Paul Markonni, was instituted. This profile, culling together the ‘‘primary’’ (for example, traveling from or to ‘‘source cities,’’ use of an alias) and ‘‘secondary’’ (for example, use of public transportation, immediate phone call upon arrival) characteristics of likely offenders.
But the drug courier profile in particular differed in important ways from earlier forms. Most importantly, it was not created by experts trained in the social and behavioral sciences, but rather was assembled based on the perspectives of enforcement agents. It also took on a more amorphous form, marked by ‘‘characteristics’’ so open ended and at times internally contradictory that they allowed agents vast discretion in finding a ‘‘fit’’ or pegging individuals to one or more of the features of the profile.
What we know as racial profiling was born out of this increase in individual-level discretion as well as the extension of the ‘‘drug courier profile’’ to the nation’s highways and interstates, where it was interpreted and applied by an even broader array of individual agents. It is in this context that the term ‘‘driving while black’’ (DWB) emerged in the mid-1990s, as the highway patrol in several states (especially New Jersey, Maryland, and Florida) were criticized for pulling over disproportionate numbers of minority— primarily black—motorists and subjecting them to pretextual stops, or stops ostensibly related to violations in the motor vehicle code, but actually motivated by racial bias.
Of course, such intentions are difficult to prove, especially given the murkiness of U.S. Supreme Court opinions during the 1970s and 1980s with respect to the drug courier profile (for example, U.S. v. Sokolow, Reid v. Georgia), but more recently the decision in Whren v. United States, 517 U.S. 806 (1996), wherein the Court unanimously accepted the ‘‘could have’’ over the ‘‘would have’’ standard with respect to pretextual stops. This means that as long as an officer is able to articulate a particular violation of the motor vehicle code for which a driver could have been pulled over (regardless of whether or not the driver regularly would have been stopped), then the officer, in effect, has sufficient justification to detain the driver and investigate the situation.
The practical effect of Whren was to afford law enforcement agents greater discretion with respect to those who, within the larger domain of motorists who theoretically could be stopped, actually are stopped, thus simultaneously making allegations of racial bias more common and more difficult to prove. (It is worth noting here that one study of highway stops in Maryland found that of the 93 percent of motorists who ‘‘could have’’ been stopped [a group that was 17 percent African American and 74.7 percent Caucasian], 73 percent of those who were stopped were black, while only 20 percent of the stops involved whites.
As we conclude, then, let us consider the complicated question lurking in the background of this discussion: Is profiling ‘‘legal’’? The short, but probably unsatisfactory, answer to that query is that it is hard to say. The Supreme Court has consistently declined to address this practice head on and rulings have seemed to run in different directions. What we do know is that for suspicion to be considered ‘‘reasonable’’ enough to constitute probable cause, an officer must still be able to articulate the particular features of the situation (see Terry v. Ohio)—as opposed to merely having an ‘‘inchoate hunch’’—to a court that will contemplate the officer’s basis in light of the unique facts and the ‘‘totality of the circumstances’’ of the case. A ‘‘profile’’ predicated on the driving of a Toyota, membership in a certain ethnic group, or simply looking ‘‘funny’’ would thus be insufficient. But traveling with expired tags, dressing in a way inconsistent with the weather (for example, wearing a heavy coat during the summer), having out-of-state plates, acting erratically at the sight of an officer, etc. might be enough—in light of other specific facts of the situation—to generate reasonable suspicion and thereby pass constitutional muster.
Therein lies the rub: Profiles represent the composite of an officer’s experience in law enforcement. But one would also expect any experienced, seasoned, and savvy officer to be able to articulate the ‘‘particular’’ reasons for stopping a motorist, whether genuine or not—especially if (following Whren) nearly every vehicle on the road or every driver during the course of travel is guilty of some violation of the motor vehicle code and is thus within the class of offenders who could have been pulled over in the first place.
BRIAN K. PINAIRE
References and Further Reading
- Harris, David, ‘‘Driving While Black’’ and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, Journal of Criminal Law and Criminology 87 (1997): 544.
- Heumann, Milton, and Lance Cassak. Good Cop, Bad Cop. New York: Peter Lang Publishing, 2003.
- Skolnick, Jerome. Justice Without Trial. New York: Macmillan, 1967.
- Turvey, Brent. Criminal Profiling. San Diego: Academic Press, 1999.
Cases and Statutes Cited
- Terry v. Ohio, 392 U.S. 1 (1968)
- Whren v. United States, 517 U.S. 806 (1996)
See also Terry v. Ohio, 392 U.S. 1 (1968); Warren Court