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By Vicky A. Bufano, Faculty Member, School of Security and Global Studies, American Military University
Is there really a difference between racial profiling and criminal profiling? There is, in fact!
Racial profiling has been declared unconstitutional, as it is a violation of the U.S. Constitution’s 14th Amendment equal protection clause. However, criminal profiling is legal and often used by law enforcement to apprehend criminals.
Criminal profiling is used by many police agencies and even the FBI because it benefits law enforcement and protection of citizens. However, to avoid problems and concerns, criminal profiling must be used with caution.
The Racial Profiling Debate
The racial profiling debate is one that has gone on for many years, with differing opinions regarding the legitimacy and effectiveness of using it for law enforcement purposes. Race-based profiling is a concern and poses a problem in law enforcement agencies. It is an illegal practice and serves only to further the divides between race and law enforcement initiatives.
The goal of law enforcement should be to establish and maintain the trust of the citizens it is designed to protect as well as serving the needs of that same community, no matter what. With the media attention on the harm caused by racial profiling, many local police agencies have developed policies, procedures and trainings. These efforts assist law enforcement officers in combating the biases and prejudices that are evident or hidden within the agency’s enforcement and create a sense of unity within the communities they protect and serve.
Racial Profiling Illegality and Ineffectiveness
The racial profiling debate cites illegality and the ineffectiveness of its use in law enforcement. Race-based profiling relies on stereotypes of racial or ethnic groups to assist law enforcement in detecting and deterring crime.
There are some people, however, who do not support race-based profiling and see it as a racist tactic by law enforcement. Organizations such as the American Civil Liberties Union (ACLU) have named racial profiling as a form of discrimination which undermines the basic human rights of people and freedoms of every person.
According to the ACLU, racial profiling is defined as: “any police-initiated action that relies on the race, ethnicity, or national origin” of a person rather than on their behavior or “on information that leads the police to an individual who has been identified as being, or having been, engaged in criminal activity.”
The ACLU’s position on race-based profiling is clear that “racial profiling is patently illegal, violating the U.S. Constitution’s core promises of equal protection under the law to all and freedom from unreasonable searches and seizures.” Furthermore, the ACLU claims that racial profiling is not effective and that it drives a wedge between American communities and the law enforcement that is designed to serve and protect that same community. As a result, the trust and credibility of law enforcement officers is gone.
For Americans, racial profiling in law enforcement is viewed as racial discrimination against black, Muslim, Latino or Asian groups. When an officer uses race-based profiling, he or she is considering the potential suspect’s race or ethnicity to establish reasonable suspicion or probable cause to initiate police action.
This is an obviously poor tactic in law enforcement and is not effective, fair, or reasonable. Officers should not use race or ethnicity when they decide to initiate a non-consensual encounter or requesting consent to search an individual. Race should never the sole basis for probable cause or reasonable suspicion of an officer.
Laws Supporting a Ban of Racial Profiling
Opponents of race-based profiling pushed for the End Racial Profiling Act of 2001 to be passed. When it was introduced into Congress, it had gained support.
However, this support came before the terror attacks on September 11, 2001. After the attacks, the legislation fell to the wayside.
The Act was then reintroduced in 2010, but it was unable to get support. Despite legislators making movement on the atrocities of racial profiling, the Department of Justice issued its “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies” in June 2003, which forbade racial profiling by federal law enforcement officials.
In March of this year, Congresswoman Sheila Jackson Lee (D-TX), became the first sponsor of the End Racial Profiling Act of 2017 and began to gather cosponsors to seek its passage.
Racial Profiling’s Effect on Officer Behavior and Communities
Racial profiling is an affront to the core values and principles in the Constitution because it violates equality and fairness. Proponents of race-based profiling argue that this tactic is necessary for public safety.
However, those proponents are misinformed, as racial profiling is an ineffective and inefficient strategy. Police officers are beginning to recognize that fact and reject its practice.
Race-based profiling is ineffective because when an officer uses race or ethnicity as an indicator of one’s behavior to commit a crime, it hinders the officer’s ability to rely on his training and experience, assess the situation and make the best decision possible about his or her actions. The color of someone’s skin or his or her appearance has no relationship as a prediction of his or her behavior. When police agencies racially profile, it spreads enforcement too wide and in a discriminatory manner.
Racial profiling also creates division between minority communities and law enforcement officers. Officers must rely on those in the community to cooperate with law enforcement efforts. But with alienation and division, citizens are not apt to cooperate and law enforcement efforts are thwarted.
The Legal Practice of Criminal Profiling
While we have seen the dangers and ineffectiveness of racial profiling, not all law enforcement actions and decisions related to a person’s race is illegal.
Profiling does occur among law enforcement agencies all over the country and has for many years. Legally, law enforcement officers and agencies engage in profiling, which is “an investigative tool to identify suspects of a crime which include [a] description of the suspect and analyzing patterns that help predict future crimes or victims.”
For example, when a serial killer is at large, law enforcement agencies develop a criminal profile of the suspect. This criminal profile is based on evidence gathered from previous crimes from witnesses, victims and the crime scene. The profile includes the potential suspect’s age range, gender, race, possible employment and other factors to narrow down the group of suspects.
Criminal profiling can be helpful in reaching law enforcement goals of apprehending a suspect of a crime, preventing crime and protecting future victims. In analyzing a criminal offense, profiling includes comparing this crime to similar crimes that have occurred in the past, using an analysis of the actual crime scene, dissecting the victim’s background and any motives for the crime, considering alternative motives, and preparing a character assessment of the offender that can be used for comparison with other cases.
Most scholars agree that suspect description, which includes race or ethnicity, and reliance on that description to investigate or apprehend a subject, is legal and allowed under the 14th Amendment. This is because the practice of providing suspect descriptions that include race or ethnicity are not discriminatory and other factors are considered.
Another factor of criminal profiling is recognizing that crime has demographics. Officers are trained and experienced in the neighborhoods they serve to notice certain factors that are present in most of the crimes, suspects and areas they patrol and investigate.
Also, officers use a large bank of information in making investigations, stop, and arrests. As a result, the officer’s training and experience goes a long way in regard to his or her behavior with a suspect.
Officers Need More Training to Avoid Racial Profiling
Racial profiling is a definite concern and can pose a problem in law enforcement agencies. It is an illegal practice and serves only to further the divides between people of different races and law enforcement initiatives.
To establish and maintain the trust of citizens under their protection, law enforcement agencies need to provide proper training and implement policies that prohibit racial profiling. This is the best way to protect and serve citizens with fairness and justice.
About the Author: Vicky Bufano is a part-time instructor in the School of Security and Global Studies at American Military University. She holds a B.S. in legal studies from the University of Central Florida and a J.D. in law from Gonzaga University. In addition, Bufano is a lawyer in Florida and a member of the Washington State Bar Association.