A Thought about Racial Profiling

I think this is a very interesting idea.

From a consequentialist point of view, there is a concern that the compensating payment policy would increase the incentives for police officers to make false arrests. Being detained for a while partly because of your race is bad. Being detained for a while partly because of your race, but then being compensated for it, is less bad. But being detained because of your race, and then being arrested on bogus charges so the police department doesn’t have to shell out extra money to compensate you — that’s worse.

There are solutions to this, I suppose. The amount of compensation would have to be high enough to compensate for the indignity of being a subject of racial profiling, but not so high as to make it cheaper for the police to arrest someone detained on racial profiling grounds on bogus charges rather than let them go with their compensation. Do you think the amount you suggest is in this range?

Alternatively, we could attempt to set up the institutional arrangements such that the compensating payments come not from the police department, but from a part of the government that is unable to put pressure on the police department.

Another thought on this idea is the worry that we don’t want to make a practice of the government paying people to put up with being treated disrespectfully. Part of this worry stems from not truly believing that money makes up for the indignity of the experience. But another part comes from the worry that we will get more disrespectful treatment once norms against such treatment (or norms that call for minimizing such treatment) are replaced with the idea that one can, in effect, pay to treat people disrespectfully. Now these effects may be no worse than those of a blanket permission to engage in racial profiling. But I suspect that even those who are in favor of allowing racial profiling would favor its use only in special circumstances and not be in favor of a blanket permission.

I think there’s probably an obvious Kantian complaint, along the following lines: doesn’t profiling treat somebody purely instrumentally? It explicitly ignores whatever it is about them that makes them unique, in order to focus on an accidental and extrinsic characteristic. At that point, the effort to buy them off with a mandatory payment would seem to make the problem worse, since it pretends to recognize humanity with an extrinsic, arbitrary compensation. In other words, profiling itself deprives someone of respect for their autonomy once, and then a preset compensation does it again.

I’m not sure this is a great argument or an insurmountable one, but it almost immediately popped into my head.

The second approach is contractualist. Suppose that you are asked to approve or disapprove of a policy of racial profiling in ignorance of the facts about your place in society. (You don’t know whether or not you’ll be a member of the profiled group, whether or not you’ll be a potential victim of crime who would be saved by the policy,…) Under certain circumstances, it seems, you’d probably approve of racial profiling from that perspective, thinking that the possibility that you’ll benefit from the policy is worth the risk that you will turn out to be someone who has to endure extra police attention and is on the whole made worse off by the policy.

I know you’re just granting this for the sake of the argument, but I don’t really see how it begins to work, at least in a Rawlsian original position. The problem of racial profiling is not simply one of being inconvenienced, or even being made to suffer a little indignity whilst being inconvenienced. The parties in the original position may, for instance, allow government intrusion into our belongings and personal effects when we travel even if that is experienced as something of an indignity.

Rather, it would seem to me that the practice of racial profiling undermines the social bases of self-respect very broadly, since it sends a message that perfectly normal people of a particular socially salient category are going to be treated as likely criminals, probably less capable of self-control, probably not moved by the higher virtues, etc. Adding a $100 compensation for those not arrested is not so much a benefit as a reinforcement of the original message, i.e. a further harm and not simply an inadequate compensation. (It’s quite different when a victim of racial profiling sues the pants off the relevant police authority, since this is not a matter of being handed a lollipop for being a good boy.)

So I think that at least one of the reasons for ruling out racial profiling from the start would also count as a reason against a racial profiling + $100 deal. If (a) racial profiling were justified, then maybe (b) the racial profiling + $100 deal would be even more justified. But it doesn’t follow from this that even if (c) racial profiling is unjustified, then (d) the racial profiling + $100 deal is less unjustified. The reason (c) rather than (a) is true is a reason against the $100 lollipop.

Hi Simon,

Just a quick question about the issue of racial profiling undermining the social bases of self-respect. The idea that it does has always struck me as plausible on an intuitive level, but I’m a little puzzled on the details. I haven’t done much reading in this area (besides Fred Schauer’s excellent book), so my apologies if these questions are a bit naive, but

1) Suppose police know that a specific crime has been committed by an 18 year old black male. In such a case, would it undermine the social bases of self-respect for police to limit their investigation to blacks (who are also male and around the age of 18)? Would it be wrong? If it would be permissible in this case, why? What’s so special about eyewitness evidence, such that it is permissible to base a profiling scheme off of it, but not off of generalized statistical evidence?

2) Is it the fact that a generalization is made on the basis of *race* which leads to the undermining of the social bases of self-respect? I don’t imagine we’d object to profiling based on clothing, say, if we could show that 90% of the people who wore a certain type of clothing (bullet proof vests?) were criminals. If racial but not clothing profiling is objectionable, why? Is it the fact that we can’t change our race, or that race is (at least for some people) a more important part of our public and self-identification? Test case - religious profiling, since religion is changeable but generally thought central to identity.

Hi Matt

1) I take it that racial profiling is more than just using racial descriptions to track down particular suspects. The problem with the former is that it involves making a claim about a category of persons, that they are generally more likely to be criminal, whereas the use of racial descriptions says nothing about whether members of the group are likely to be criminal themselves. It just says that a person matching a description might turn out to be the specific person who is being sought. If and when that possibility is defeated, there is no residual suspicion. I don’t think this is the case with racial profiling, where there is a message that people of that type are generally untrustworthy, dangerous, to be avoided, etc.

Not to say that the use of racial descriptions is unproblematic. I would imagine that descriptions of white suspects are often more fine-grained than descriptions of suspects of other racial groups. But I don’t know if this is an in-principle problem with racial descriptions per se.

2) Yes, I would think race is special because of the history of how race has been used. And religion would be problematic too. I don’t think this has to do with the volitional/non-volitional nature of the characteristic, but I’m afraid I don’t have much of a theory of which characteristics may be employed when. (Wish I did.)

One way to see the objection to racial profiling is as part of a project of social reform more generally (in which case no plausible amount of compensation would be sufficient to make it acceptable).

Suppose it’s true that group X has a higher-than-expected percentage of criminals (relative to their population), and that this is the case just because group X has been the victim of extreme kinds of social injustice — residential segregation, employment discrimination, etc. etc.

It seems like one thing we might say to society as a whole is “if you want to solve the group X crime problem, you can’t do it by increasing the attention on group X — you’ve gotta do it by cleaning up your own mess.” And then barring X-profiling is just instrumental to doing that. That is, if society as a whole is forbidding from engaging in X-profiling, then it is forced to, e.g., end the segregation, enforce anti-discrimination laws, etc. in order to stop the crime.

I don’t think this actually matches our intuitive resistance to racial profiling, but I do think it gives a sound basis for an objection. It also implies that in a society where all the “races” were genuinely socially equal, there would be no objection to racial profiling. But I’m ok with that, because in such a society, there would be no basis for racial profiling, because the racial differences in criminality only come from social inequality. Or, at least, I need that presupposition to make the implications of this argument acceptable, and believe it’s true.

As for the worry about paying people to put up with being treated disrespectfully… That’s not how it ought to work. In searching/stopping people for whatever reason, police should not treat them disrespectfully (they should assume innocence, be polite and friendly etc). We’d be compensating people for inconvenience. But the inconvenient treatment need not be, and should not be, disrespectful.

I wonder if we can actually pull off this distinction. Under certain circumstances, it seems that to inconvenience a person is to thereby disrespect that person. Which circumstances? Those in which, owing to nothing in particular the person has done, she is intentionally inconvenienced.

Suppose that the same statistics used to support racial profiling by police were taken up by a security-minded manager at the university bookstore. The manager decides to implement a policy saying that, say, black customers entering the store (and only blacks) will be required to leave all of their bags and belongings in unsecured cubbies at the front of the store while they shop. The sign that states this policy, and the employees who enforce it, are very polite. Nonetheless, most of the black customers believe they are being treated disrespectfully. I do think it is important to leave open the possibility that people can be mistaken about whether they are being treated disrespectfully. Do you think these customers are mistaken?

The security-minded manager has a hobby of keeping up with the latest philosophy blogs. Sensing disgruntlement amongst certain clientele, he decides to post a second sign that acknowledges the distinction between

“The fact that someone is of this racial group makes him more criminally inclined than are people who are not of that racial group, all things being equal,” and, “Of the people who are criminally inclined, a disproportionate number of them are of this racial group.”

and emphasizes that their policy is based on the latter, rather than the former, idea. Are the black customers who continue to feel disrespected by the policy mistaken?

(As a side note, the manager has to reject the possibility of asking all customers to leave their bags at the front, as his store just does not have the physical capacity for that.)

Finally, as the store’s revenue begins to dip, the manager amends the policy. He offers a 5% discount to all of his black customers. Are the black customers who continue to feel disrepescted by the policy requiring them to leave their bags and belongings at the front of the store mistaken?

I don’t mean for these to be rhetorical questions. As I said earlier, I think people can be mistaken about whether they are being disrespected. I just don’t know if that is what is going on in this example.