RACIAL PROFILING

By Pragati Verma

Introduction

The concept of racial profiling is erupting throughout the world.  Racial profiling refers to the discriminatory practices by law enforcement officers targeting individuals on basis of their race, caste, religion, sex, ethnicity or national origin, suspecting for criminal activities. Mostly practiced by police, suspecting a particular based on his sect or the characteristics of crime they believe to be associated. It targets people of color for investigation, isolating communities from law enforcements complicating policing efforts in society. This results in misplacing trust of fair practice by police, losing integrity and faith among the people whom they are liable to be protective. The practice of racial profiling has feared many people always being in the sphere of suspicion and skeptical because of their particular community or any other trait. This is not only unethical but also an inhuman exercise to judge and discriminate one based on such uncontrollable elements.  National security is of supreme importance, detecting terrorists and terrorism is paramount but it does not allow practicing racial profiling. There is an urgent need to look into this and eliminate it from society.

Definitions

Numerous definitions and theories have been propounded to describe the enactment of racial profiling. In the context of law it has been described as “the systematic association of sets of physical, behavioral or psychological characteristics with particular offences and their use as a basis for making law enforcement decisions”[1] it is irreconcilable to human rights mainly performed among police, customs, immigrants and national security agencies. Race, color, descent or national or ethnic origin can be considered by police and investigating agencies as a credible suspect in specific or heinous crimes. Robert K Merton developed a strain theory based on the idea that all human in society share common goals and values. All want to achieve luxuries and success however, each individual is not economically stable or at equal footings. Based on this some are winners and some are losers. Based on this he concludes that each person pressures to achieve this enabling and pushing him to engaging into a criminal activity. The act of racial profiling must include discriminatory omissions or the lack of recognition on the part of law enforcement.  Complete ignorance of human rights and the rule of equality take place making one to be separated and treated differently.  Suspecting or targeting a person based on his religious group, race, caste, sex or any other interested ground is human rights violation.  For example a person of particular color is been suspected, a thief by the store manager believing people similar to his color use to thieve.

Racial profiling is not only practiced in a single country there are number of countries exercising this discrimination irrespective of their economical, democratic or secular nature. It is widespread among the globe affecting several people. Some of these include U.S., Canada, Germany, Mexico, Spain, Israel, China and many more countries.

Examples of racial profiling

Asian Racial Profiling

Large part of Asians has been earmarked to be victim of racial profiling. As per U. S. Census 10 million or almost 4 per cent of population has faced this act.  A Taiwanese American named Wen Ho Lee was targeted and suspected of espionage on the basis of his race.  Relying upon the remarks by FBI and department of Energy Officials discriminated Lee due to his nationality (Chinese) whereas rest eight similar non- Chinese were not prosecuted.

In 2001, the Asian Freedom Project of Wisconsin provided a report claiming racial profiling of Hmong communities, including statements of adults and boys and girls too.

A “gang “has been set up by the garden grove (CA) police department by the group of young Asian Americans  complaining that their civil rights were violated when they are suspected due to their ethnicity and clothing.

Indian Racial Profiling

“DWI” or “Driving While Indian” mostly found in U.S.  According to the National American Indian Housing Council nearly 2.4 million Indians in U.S. Indian complain about stops and searches by police or sheriffs on roads due to reservations present. However in South Dakota Indians are being stopped and tested practicing racial profiling not only because of their race but also due to the religious articles hanging from rear view mirrors and regional license plates indicating them as living on reservations.

California (Los Angeles)

Reports were compiled by ACLU (Southern California) stating hundreds of black and Latinos to be victim of racial profiling by Angeles Police Department dogs in time period of 1990-1992. The dogs were trained to “attack and maul”. Whereas in 1997, California State Highway patrol canine units suspected almost 34,000 vehicles carrying drugs but only 2 per cent of them were found guilty.

Washington (Seattle)

It has been purported by ACLU in 1992 blaming police dog handlers to use excessive force on suspects. Dogs were ordered to attack and bite harmlessly to suspects irrespective of their actions. It was claimed that 40 per cent attacks were against African Americans and almost 91 people have received severe police dog bites.

 Racial profiling by Police

This is the major section practicing racial profiling. There are various federal and state laws prohibiting police to discriminate particular individuals from unreasonable search and seizure. The Federal Civil Rights Acts and other states civil and human rights act are so designed to make it illegal for any government official to differentiate on the basis of race, color, sex or origin. Number of laws prevents officials from performing racial profiling for the sake of their duties.

 For Example: Drivers of African descent have complained of stopped during driving approx 7,238 times during the period of 2013-2015 which is about 8.8 of total stops[2]. “Driving while black or brown” has been observed if a black man drives luxury vehicle it is assumed that he has stolen it or during the traffic stop or arrest the person is inspected as he looks Hispanic. Officers use to stop people because of their color.

Legal Remedies for Racial Profiling by Police

Mostly civil actions are taken as remedies in racial profiling. “The exclusionary rule” can be taken in some of the criminal cases. Only Oklahoma State provides penalties for conduction of racial profiling by an officer. Oklahoma considers violation a misdemeanor[3].

Federal Civil Lawsuits

State civil rights or human rights statutes help victims to avail remedies for racial profiling.  There are only few states allowing filing Civil suits of profiling. The islands of Kansas and Rhode provide civil suits against officers enacting racial profiling in practice of their duty[4].

The Exclusionary Rule

The criminal rule of evidence mentions exclusionary rule, it states that a criminal defendant may ask court to exclude the evidence obtained illegally by the police as a part of illegal stop. According to U.S. Supreme Court the officers state of mind is not necessary declare a stop illegal until and unless the circumstances too justify it[5]. U.S.  Supreme Court strictly prohibits racial profiling by police.

Other Actions taken

In order to eliminate and eradicate this unethical practice of racial profiling several thinkers, law makers, communities and government officials have introduced and framed some possible terms ,tactics and laws to prevent innocents from becoming the victim. Some of these include:

  • Development of police departments to work against the system of racial profiling
  • Creation of Special Forces to evaluate racial profiling ant to eliminate it from community
  • Appointing special review boards collecting and reviewing the cases of racial profiling
  • Authorizing of actions against officers practicing racial profiling
  • Mandating data collection and monitoring the spots such as traffic stops, arrest, searches and police stations where it can be exercise.

Legal Framework

  • Number of principles and rights are being violated by racial profiling. Article 2 of  Universal Declaration of Human Rights , article 2 of the International Covenant on Civil and Political Rights, articles 1, 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination and article 2 of the Convention on the Rights of the Child, all these articles mentions principles of “equality and non- discrimination”. They protect discrimination based on race, color, origin, sex, descent, ethnic origin, language, religion, nationality or any other such ground.
  • Article 7 of Universal Declaration of Human Rights and article 26 of International Covenant on Civil and Political Rights sates that all persons are equal in the eyes of law and same rights are vested to all. All are entitled to be protected against discrimination. Racial profiling violates these laws.
  • Right to life, liberty, security and privacy are being affected by the practice of racial profiling. It has a negative effective towards enjoyment of these laws provided by the state.
  • A decision by Human Rights Committee in 2009 came out to be the first decision by a treaty- monitoring body acknowledging racial profiling as unlawful discrimination in the case of Williams Lecraft v. Spain. In the leading case a women was stopped and checked suspecting her identity at railway station on the grounds of her ethnicity. Suspecting one on the basis of his clothing or physical or ethnic characteristics is against the International convention on Human Rights non- discriminatory principle. Article 26, read in conjunction with article 2 (3), of the International Covenant has been violated[6].

Critical Analysis

 Racial Profiling refers to the practice of discriminating and targeting individuals by law enforcement officials to be suspected of crime because of their race, caste, religion, origin, ethnicity, sex, nationality on any other such ground. This has been practiced since decade especially in the U.S., its origin. It is being practiced by government officials, search agencies or special investigation forces in the view of national security. In this era of increasing terrorism and frequent terrorist acts national security is a sensitive and unavoidable issue. Swearing to be protective and attentive is an important part of security.  To be suspicious in this light does not oppose the equality policies of state but to be discriminative on the grounds of ethnicity, case, race, religion, gender, or origin is not reliable. Rights provided by Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Convention on the Rights of the Child and many more seems to be opposed by racial profiling. Right to equality, security and liberty tends to be violated. And the most important Right to privacy seems to be in danger, it not only confidences to protect, preserve and guard ones personal and foremost information but also provides a chance to confer upon his privacy. The “DWI” rule practiced in U.S. against Indians is an unfair example of discrimination. To be discriminative on the grounds of color or origin in unlawful and unethical. The federal civil rights acts and many state or human rights acts make it illegal for a government official to practice it and provide filing of law suit against it.

Conclusion

Discriminating or listing out one from others because of his caste, ethnicity, race, religion, origin, etc is not only unethical but also inhuman. No state allows or mentions to discriminate on such ground. Being a part of certain community does not prove to be similar to rest who are part of it. As per social factor theory each and every person in society admires success and desires to live a luxurious life. As all are not equal socially so some cam afford it and some cannot not. The pressure of these desires forces one to engage in number of activities including right and wrong, good and bad, legal and illegal. Thus each person chooses a different path to reach the goal and fulfill the ideals. Adopting a particular path is ones personal choice and it does not provide that others should adopt the same route. So differentiating one on his origin or any such ground would be unjust and biased. It not only violates human rights but also non-discriminating laws and policies provided by state.  Several laws, rules and provisions have been framed by law makers, government officials and policy makers to be just and equitable for the communities facing this inhuman act. Special task force and officers have been appointed to look into the matters of racial profiling and work against the officials practicing this. Racial profiling has been majorly exercised by police as a part of security. But it should be kept in mind that police is to protect and safeguard society without any discrimination. No ground could restrict them to be preventive in society. The practice of racial profiling by police instills a fear and distrust among the people blaming them to be biased. It not only losses faith but also conviction doubting their duties and fair- minded towards each and every community. Minorities are seen to be its major victim making them to live in the sense of fear. It develops a sense of anxiety among them.  Absence of strict laws to prohibit and punish this activity of racial profiling by officials makes it ignorant. Hence it is required to ne attentive towards it and work to eliminate and eradicate it. It is very important to work in this field and frame proper laws and policies to terminate this.


[1] United Nations, Counter-Terrorism Implementation Task Force Working Group on Protecting Human Rights while Countering Terrorism, Basic Human Rights Reference Guide: The Stopping and Searching of Persons in the Context of Countering Terrorism, updated 2nd ed., (New York, March 2014), p. 12.

[2] See also Lorne Foster, Les Jacobs and Bobby Siu, “Race data and traffic stops in Ottawa, 2013–2015: a report on Ottawa and the police districts”, research report prepared for the Ottawa Police Service, October 2016, pp. 3–4.

[3] Okla.Stat.Ann.it. 22§ 34.3

[4] Kan. Stat. Ann. § 22-4611 (2020); R.I. Gen. Laws § 31-21.2-4 

[5] Whren v United States, 517 U.S. 806 (1996).

[6] Communication No. 1493/2006, Williams Lecraft v. Spain, views adopted on 27 July 2009

Leave a Reply