Friday, September 18, 2009

Henry Louis Gates, Jr., Racial Profiling, and the Review Committee

Bernard E. Harcourt

The members of the Gates arrest review committee have just been selected and I’m delighted to see that Yale professor Tracey Meares will be one of the twelve committee members and that the committee will be chaired by Chuck Wexler, a respected and trustworthy thinker on police administration who has headed the Police Executive Research Forum now for sixteen years.

Although the scope of the committee’s review is relatively narrow (the six questions the committee will address are here), the committee should take this opportunity to really address the problems of race and policing, and racial profiling. The fact is, an avalanche of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country—including Ian Ayres’ recent study of the LAPD, RAND Corp.’s report on the NYPD, and other recent studies in Arizona, West Virginia, and Illinois. The ACLU has just released its report to the U.N. Committee on the Elimination of Racial Discrimination that catalogues and summarizes all the relevant data and studies, and that is appropriately titled “The Persistence of Racial and Ethnic Profiling in the United States”.

But despite that avalanche of recent studies, the issues surrounding race and policing did not receive national attention until the arrest of Henry Louis Gates at his home in Cambridge. This raises a number of questions about the role of the media, of our political leaders, and about our national attention span—but more than anything, it also means that this is a rare opportunity to continue a conversation that drew national interest.

Earlier this week, I argued in William Julius Wilson’s Inequality Seminar that the real problem with racial profiling is that it is just another form of statistical discrimination and that, today, we all embrace statistical discrimination as efficient and justified whenever there are group-based differences in behavior or fact disparities. We all, today, play the odds. That’s how we have come to lead our lives. We have become statistical creatures. Whether you call it stereotyping, generalizations, or profiling, that’s how we operate and that’s how we operate in all dimensions of our daily life. When you add to that the fact that many Americans and most criminologists believe that there are statistical differences in the rates of “street crime” offending along race lines, racial profiling becomes second nature—as just another form of statistical discrimination. And tragically, truth is, most Americans do it on the street most of the time.

Identifying the problem, though, points to a solution in the racial profiling quandary, because statistical discrimination is misguided in dynamic situations where there are feedback effects. In policing, it is counter-productive to the law enforcement objective of reducing crime. Two things in particular undermine statistical discrimination in the criminal justice context. First, statistical discrimination is likely to be counter-productive to the ultimate objective of law enforcement and cause more crime under the conservative assumption that the targeted population (the population with higher offending) is less responsive to policing than the non-targeted population. Second, even if we assume complete inelasticity, statistical discrimination is going to lead to a ratchet effect on members of the profiled population with highly detrimental consequences on their employment, educational, familial, and social outcomes that is likely going to result in counter-productive effects on crime.

Like Lani Guinier and Gerald Torres’s metaphor of the miner’s canary, the racial dimension of racial profiling is what troubles us in the arrest of Henry Louis Gates. But, just like the canary whose distress is a warning that the air in the mine is poisoned, the troubling aspect of race in the debate over racial profiling points to the larger problems of statistical discrimination writ large. And until we properly understand the problems of statistical discrimination writ large, I fear that we will make little progress on racial profiling. I fear that there will simply be more studies of police stops and more high-profile and disturbing arrests, but little progress on the issue of race and policing.

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