Research Proposal on "Policing - Criminal Profiling: Legitimate"

Research Proposal 6 pages (1677 words) Sources: 8 Style: APA

[EXCERPT] . . . .

Policing - Criminal Profiling

CRIMINAL PROFILING: LEGITIMATE POLICING TOOL or RACISM

Due process of law is one of the most fundamental concepts in American constitutional law. The right of citizens to live free from the threat of arbitrary or partial enforcement of law by government authorities was foremost on the minds of the Founding Fathers (Dershowitz 2002), inspired by the Colonial experience under British rule preceding the War of Independence. It is expressed in the Fifth Amendment to the Constitution with respect to the federal government and, since 1914, has been applied to the states through the Equal Protection Clause of Fourteenth Amendment (Friedman 2005).

Equal protection prohibits differential treatment under the law, which applies, in principle, to being subjected to police investigation and detention predicated on personal characteristics rather than specific criminal behavior or reasonable suspicion thereof (Schmalleger 1997). Police profiling refers to the unconstitutional practice of selecting subjects for police enforcement by virtue of their characteristics; issues in that regard arise most commonly in connection with racial background, cultural heritage, and apparent social class. Traditionally, traffic enforcement has generated the vast majority of profiling allegations, because of the ubiquitous nature of driving in American society as well as the dynamic associated with operational mechanics of initiating traffic stops at the police officer's autonomous discretion and choice with regard to selection of violators to pursue (Peak 2002).

The Fundamental Problem with Police Profiling:

Equal protection does not apply only to prosecution and punishment, but also to other constitutional rights and laws pertaining to due process and privacy, in particular, with respect to criminal procedure and police enforcement and investigative practices. It is no consolation to someone detained against his choice for police investigation that no arrest was made, no charges were filed, or that no penal enforcement action was ever taken. To the extent his inclusion in a police investigation was based on his characteristics rather than on his specific behavior or conduct that reasonably justified police investigation, his fundamental constitutional rights have been violated.

Unrestricted police profiling would permit law enforcement officers to choose only racial minorities (or individual with any other personal characteristics) as subjects of traffic enforcement. Prior to the modern Civil Rights Era, police officers in many jurisdiction did, in fact, purposely select vehicles occupied by black individuals when conducting traffic stops (Caldero & Crank 2004). Such prejudicial police practices have since been prohibited the inclusion of any personal characteristics like race or ethnicity, especially.

Nevertheless, even in the present day, in certain states, including New Jersey and Maryland, state police had established an unmistakable record of initiating traffic stops disproportionately, stopping black and Hispanic drivers compared to non-minority (i.e. Caucasian) drivers. Similarly, records from both agencies established that differential police tactics exceeded merely the initial choice of potential violators: in addition to stopping more black and Hispanic drivers, state police had also established a very different pattern of exercising discretion by issuing warnings for the original violation or issuing summonses for it. Non-minority drivers were stopped less often as well as cited less often for the violation that justified the police contact (USIJ 1999). Even worse, in the absence of probable cause, officers from those agencies also requested consent to search vehicles more often from minority drivers. Like the choice to select a specific violator from many, the choice to solicit consent to perform searches not otherwise authorized by the circumstances of the traffic stop is a legitimate matter of officer discretion. However, just as in the case of the initial choice of subject, that discretion does not include the latitude to exercise that discretion partially, based on race or any other personal characteristic of the traffic violator (Peak 2002)

The practice of police profiling in connection with vehicular code enforcement is even more important in light of the common policing tactics of using traffic stops as pretextual predicates for the possible discovery and investigation of more serious criminal offenses. In principle, this is not prohibited by law, provided that the basis of the original car stop was justified by probable cause with respect to the violation itself (Peak 2002). Consequently, permitting racial profiling in connection with even civil code enforcement (such as in jurisdictions where motor vehicle code violations are subject to civil rather than penal enforcement), has much larger implications in combination with the pretextual use of vehicular codes as tools for "fishing" by police officers.

Profiling as a Legitimate Policing Tool:

On the other hand, certain uses of race (and other personal characteristics) is distinguishable from profiling because they serve a legitimate purpose and are legitimately connected to specific criminal conduct. They are appropriately exempt from prohibition under the operation of equal protection and other limitations on police conduct. For example, where victims of crimes or witnesses provide a description of perpetrators that includes racial characteristics, the inclusion of race as a basis for selecting potential subjects of the criminal investigation of that particular crime does not constitute profiling (Dershowitz 2002).

Likewise, during the 20th century, the concept of psychological profiling emerged, mainly in conjunction with the investigation of serial murders. In that context, profiling takes the form of statistical information of past offenders used to generate demographic and personal identifying criteria based on various commonalities between offenders of specific types of crimes. While psychological profiling does not justify or permit the violation of due process rights of any individual based solely on matching the criteria associated with the unknown suspect, the information is used appropriately to narrow the field of potential subjects of further investigation (Shusta, et al. 2007).

Racial Profiling and Domestic Terrorism in the 21st Century:

Since the terrorist attacks on the World Trade Center and the Pentagon of September 11, 2001, the issue of racial and ethnic profiling has again risen to increased prominence in the United States. On one hand, the inclusion of ethnic characteristics is perfectly logical from the perspective of counterterrorism, especially in a climate where many terrorists share a national heritage and a religious orientation that is central to the underlying philosophy and motivation for anti-American terrorism. On the other hand, the concepts of due process, equal protection, and the civil rights of members of those ethic groups and religious orientation who are not involved in terrorism undoubtedly trump even the importance of preventing domestic terrorism.

According to proponents of the inclusion of ethnicity or religious affiliation within appropriate criteria for counterterrorism efforts, it is completely illogical to ignore the fact that the current domestic terrorism issue relates very directly to militant Islamic fundamentalists. The major terrorist attacks in recent American history all share a common motive rooted in Islamic militarism and objection to U.S. foreign policy in the Middle East. While not necessarily suggesting that Americans of Islamic heritage and beliefs be subject to random police investigation in the absence of justification, the war on terror may indeed warrant a change in the way due process principles are applied in other circumstances.

For example, under current guidelines, the Transportation Security Administration (TSA) must completely ignore ethnicity in connection with random searches of airline passengers. In actual practice, this often requires TSA agents to restrict their efforts to searching individuals who are rather obviously not sympathetic to Islamic terrorism, such as elderly Caucasian-American and lifelong citizens while being prohibited from searching individuals who precisely fit the demographic profile of recent Islamic terrorists. In light of the realities of the current phenomenon of Islamic terrorism, the ethnic background and citizenship of airline travelers more closely approximates the situation of psychological profiling based on characteristics associated with specific type of crimes such as serial murder.

The justification for infringing on the due process and equal protection rights of Islamic individuals is that there is a logical basis for the increased focus on Islamic individuals, especially… READ MORE

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