The Secret Ambition of Racial Profiling
Wu, Steven, The Yale Law Journal
In 2000, a year after the shooting of Amadou Diallo, a select committee of the New York City Council held a series of meetings in the Bronx to address police-community relations. The committee intended the meetings "to open a dialogue between police officers and city residents, perhaps even repair relations," but the first meeting degenerated into a torrent of accusations from over two hundred attendees on police mistreatment of African-Americans. (1) "[O]ne resident after another relat[ed], with a mixture of passion and anger, humiliating encounters with the police" that they attributed to their race. (2) By the end, police officers could do nothing but sit quietly and hear out the people they were supposed to serve.
The meeting failed for a simple reason: The committee placed too much faith in the power of open dialogue and overlooked the bitterness then underlying any discussion of police-minority relations. A similar problem afflicts R. Richard Banks's Beyond Profiling: Race, Policing, and the Drug War, which criticizes the current debate over racial profiling for focusing too much on profiling's alleged irrationality. (3) For Banks, the argument that racial profiling is irrational is mere masking rhetoric, obscuring underlying grievances about the consequences of profiling for minorities and minority communities. Banks urges opponents of racial profiling to debate these grievances openly rather than cloak them with claims of irrationality.
This Comment argues that Banks does not properly take into account the dangers of open dialogue. Dan Kahan pointed to these dangers six years ago in The Secret Ambition of Deterrence, (4) which argued that masking rhetoric is sometimes necessary to avoid conflicts over controversial topics. After providing background on the two articles, I argue that the debates Banks wants us to have about racial profiling are prone to the types of value conflicts that Kahan identified in Secret Ambition. I conclude that progress is possible if we forego Banks's contentious debates: The current rhetoric on racial profiling, despite its many weaknesses, enables us to make limited but important reforms.
I. BANKS'S CRITIQUE
Racial profiling occurs when law enforcement interprets race as "a mark of increased risk of criminality." (5) Most racial profiling today is conducted by individual officers engaged in street-level policing; it is not generally a practice authorized by state statutes, local ordinances, or even police manuals or guidelines. (6)
By most accounts, the public campaign against racial profiling has been a great success. (7) Banks attributes this success in large part to the popular appeal of an argument he dubs the "irrationality claim": "the empirical [argument] that racial profiling is unjustified because blacks and Latinos are no more likely than whites to commit drug crimes." (8) This empirical argument also supports the related claim that racial profiling "is not, in fact, a sensible crime fighting tool." (9) For Banks, however, the irrationality claim fails to live up to its reputation, for both empirical and explanatory reasons. First, it ignores growing evidence of a racial gap in crime rates. (10) Second, the irrationality claim does not accurately explain why people oppose racial profiling. According to Banks, the actual grievances that "animate the campaign against racial profiling" center on the consequences of street-level profiling, not its rationality. (11) Specifically, he highlights two issues that have been obscured by the current focus on the irrationality claim: the poor relationship between police and minority communities and the high levels of incarceration among minorities. Banks advocates moving the debate on racial profiling away from a focus on irrationality and toward "a focus on the consequences of drug policy and policing practices." (12)
II. KAHAN'S THEORY OF MASKING RHETORIC
In The Secret Ambition of Deterrence, an article on the public debate over criminal punishment, Dan Kahan offered an argument with striking parallels to Banks's. …