In the spring of 2013, over the course of a nine-week trial, the City of New York and the New York Police Department tried to defend their “stop and frisk” policy. They argued that the focus on Blacks and Hispanics was justified because “blacks and Hispanics account for a disproportionate share of … crime perpetrators.”87 One of the City’s expert witnesses testified:
Obviously, if particular racial or ethnic groups in New York participate in crime at a rate disproportionate to their share of the population, we would expect officers to conduct … stops for such groups at rates higher than each group’s respective share of the City’s population.88
The judge, Shira Scheindlin, was unsparing in her assessment of the City’s case:
The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this reasoning is flawed because the stopped population is overwhelmingly innocent—not criminal.… [T]here is no basis for assuming that the racial distribution of stopped pedestrians will resemble the racial distribution of the local criminal population if the people stopped are not criminals.…
If the police are stopping people in a race-neutral way, the racial composition of the innocent people stopped should more or less mirror the racial composition of the areas where they are stopped, all things being equal.89
She goes on to argue that even if one demographic group or another is more involved with criminal activity, it in no way follows that innocent people from the same group are more likely to behave suspiciously, giving police grounds to stop them. The use of race as a proxy, it seems, has been substituted for the legal standard of reasonable suspicion and led the police to search for suspects “from the pool of non-criminals not exhibiting suspicious behavior”90—which is, very nearly, the definition of racial profiling. As Judge Scheindlin explains, “To say that black people in general are somehow more suspicious-looking, or criminal in appearance, than white people is not a race-neutral explanation for racial disparities in NYPD stops: it is itself a racially biased explanation.” In other words, “Rather than a defense against the charge of racial profiling, … this reasoning is a defense of racial profiling.”91
Judge Scheindlin ruled that nine of the nineteen stops discussed in court were unconstitutional and, of the remaining ten, five involved unconstitutional searches.92 Moreover, she found that, at an absolute minimum, the police had engaged in 200,000 stops that fail the test of constitutionality.93 She blamed police leaders for their “deliberate indifference” to the rights of minorities, noted the pressure they put on their subordinates to aggressively stop and search people of color, and pointed to shortcomings in record-keeping, supervision, training, and discipline.94 She did not, however, order an end to the stop-and-frisk per se, but only prescribed policy reforms and increased monitoring to change how it is done.95 Such half-measures may reduce the scale of the practice, but they will not stop the police from viewing people of color with suspicion, arbitrarily stopping them, rifling through their pockets, arresting them—and worse.
Consequences of Profiling
On February 4, 1999, a twenty-two-year-old West African immigrant named Amadou Diallo was killed by New York City police officers while standing in front of his own home. Four cops—Sean Carrol, Edward McMellon, Kenneth Boss, and Richard Murphy—fired a total of forty-one shots. Nineteen hit him. Diallo was unarmed, and had committed no crime.96 He was simply in the wrong place at the wrong time, and Black.
Stephen Worth, a lawyer for the Patrolman’s Benevolent Association, explained the shooting: “He is acting strange, he fits the rapist’s description in a generic way.… The reason they are shooting him is they think he has a gun.”97 Worth refused to elaborate on Diallo’s “strange” behavior, the “description” he matched, or why the police would think he was armed. But witnesses later helped to fit the shooting into a broader pattern; they told the Village Voice that earlier in the evening the same officers—members of the elite Street Crimes Unit—were stopping and searching numerous Black men, seemingly at random. Such behavior fit the unit’s established modus operandi. In 1997 and 1998 the Street Crimes Unit stopped and searched 45,000 men, mostly Blacks and Latinos; it made 9,000 arrests.98
Amadou Diallo was not a criminal. He was not, in any real sense, a suspect. He matched a “generic” description. He fit the profile. He was a young Black man, and that was enough. He became, quite literally, a target. The police gunned him down as he stood in his doorway. They fired forty-one shots.
Diallo’s shooting represents only one cost of racial profiling—the losses calculated in terms of bodies, bullet holes, scars, and stitches. But there are other victims, other costs, counted in years, marked off in cell blocks, ringed with razor wire.99 Race-based policing contributes to the overrepresentation of minorities (especially Black people) at every stage of the criminal legal process. Statistics from mid-sized cities across the country show startling disparities in the drug arrest rates for Whites and Blacks.
If we look specifically at the rates for drug sales (excluding marijuana), the gap is even more striking:
Arrest leads to court, and court leads to prison, and the disparities continue at each step.102 According to the Bureau of Justice Statistics, at the end of 2010 there were 2,226,832 people in jail or prison in the United States, another 4,887,900 on probation or parole—for a total of 7.1 million in some way under the supervision of the correctional authorities. That means that 3 percent of adults were under correctional supervision, including 1 in 48 on probation or parole and 1 in 104 in jail or prison. Put differently: almost 1 percent of the adult population is behind bars (962 per 100,000).103 Of those, in 2010, Blacks were 13 percent of the national population but 40 percent of the prison population; Hispanics were 16 percent of the U.S. population and 19 percent in prison; and Whites were 64 percent nationally, but only 39 percent carcerally.104 For every 100,000 Black women in the U.S., 260 were in prison; for every 100,000 Latina women, 133; for White women, 91. More startling still, for every 100,000 Black men, 4,347 were in prison; for Latino men, 1,775; for White men, 678.105 Doing the math, we see that Black women are almost three times as likely to go to prison as White women (2.8): Latina women are almost half again as likely (1.45). Black men are 6.4 times as likely to be imprisoned as White men, and Hispanic men nearly three times as likely (2.6). By some estimates, one in every three Black men will go to jail at some point in his life.106
Taken together, the numbers on police stops, searches, arrests, and incarceration, show a persistent bias in the criminal legal system, one neither explained nor justified by any considerations related to crime. The evidence absolutely contradicts the idea that racial profiling is useful in getting drugs, or guns, or criminals, off the streets. If we insist on viewing the police as crime-fighters, profiling can only be seen as a mistake, a persistent disaster. But if we suspend or surrender this noble view of police work, and look instead at the actual consequences of what the cops do, profiling does make a certain kind of sense; it follows a sinister logic. Racial profiling is not about crime at all; it’s about controlling people of color.
Racial profiling doesn’t only label certain groups as the objects of official control, it also limits the mobility of people of color, and thus restricts their access to resources and opportunities. Harris notes:
It may cause many people of color to plan their driving and travel routes in certain ways, to take (or not take) particular jobs.… They may simply stay out of places and neighborhoods where they will “stand out”—where police may feel they don’t “belong”.… [And thus,] these tactics help to reinforce existing segregation in housing and employment.107
Race-based policing, and especially the fear of