David Harris is the University of Toledo law professor who provided much of the intellectual heft behind the war on racial profiling. His 1999 report for the American Civil Liberties Union, which has filed most of the anti-profiling law suits, was entitled "Driving While Black: Racial Profiling on the Nation's Highways." In 2002 he expanded his argument into a book.
The national ruckus Harris helped stir up has, among other results, made it hard for security personnel to use intelligent profiles to uncover potential terrorists in airports, at our national borders, and at visa offices abroad. That is a mistake that has already come to haunt the U.S. horribly. And so long as anti-profiling crusaders prevent law enforcement officials from carefully applying profiling tools, Americans will continue to be needlessly exposed to potential re-runs of September 11th.
Harris and his compatriots are clever enough to present themselves as friends of law enforcement, who are just trying to help the police do a better job. Harris himself purports to object to racial profiling mostly because it's "ineffective." But the reality is that he has launched a broad and misguided attack on America's law enforcement and criminal justice systems. Like most of the activists who have turned the campaign against racial profiling into a crusade, Harris practices a shoddy form of racial politics with which we have become all too familiar.
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The thesis at the heart of the anti-profiling complaint — that racial disparities in crime rates and arrests reflect racially biased policing — is torn to shreds by basic criminological data. David Harris argues that crime rates are equal among racial groups, and arrests, convictions, and incarcerations are unequal simply because police, prosecutors, and courts systematically pick on minorities because of the color of their skin. The logic of his argument ends in a demand for justice by racial quota.
The contention that crime is committed at equal rates by members of various ethnic groups is the central premise of the ACLU's anti-profiling argument. If that premise is false, their argument fails. And the stakes are high. The issue of alleged ethnic discrimination by police has taken on a heightened importance amidst the war on terrorism. Many of the profiling issues that began as farce over traffic enforcement stops are now replaying themselves in the war on terror as potential tragedies.
Contrary to the view of the world propounded by David Harris and the ACLU, racial disparities in law enforcement generally reflect racial disparities in crime rates. It is true that racial disparities exist at many stages of our criminal justice system. Blacks have been arrested, convicted, and incarcerated at rates far exceeding those of whites for as long as official data on the subject have been compiled. Middle Eastern Arabs have been disproportionately associated with air terrorism for more than a generation.
These disparities have been studied for evidence of systematic discrimination, and it is now widely accepted among serious scholars, such as Professor Michael Tonry of the University of Minnesota Law School, that higher levels of arrests and incarceration in the U.S. by ethnicity result substantially from higher levels of crime, not racial bias. Sometimes the magnitude of the racial disparities in crime rates is huge. The black murder rate is seven to ten times the white murder rate.
Harris claims that disparities in arrest and incarceration rates are a function of systemic law enforcement bias. Finding that the best national data do not agree, he arbitrarily declares the data wrong: Citing statistics from the National Crime Victimization Survey, he correctly states that more than 50 percent of violent crimes are unreported. Harris then absurdly implies that it is among these unreported crimes that the otherwise undetected white criminals are hiding.
Harris's argument on this basic point does not reflect well on his methods. He makes such claims not only against cops, but against all parts of our justice system. According to him, "Just as with arrest statistics, incarceration rates measure not crime but the activity of people and institutions responsible for determining criminal sentences." In other words: Judges are racists, too, just trust me.
Harris implies that if law enforcers just weren't so darn fixated on Arabs, blacks, and other minority groups, officials would discover that comparable levels of crime and terrorism are committed by whites, and just left unpunished. But we have statistics on the race of perpetrators as identified by the victims of unreported crimes. And guess what? They closely track the racial identity of perpetrators in reported crimes. Harris omits this inconvenient fact brought to light by the National Crime Victimization Survey, even though he relies on that same survey to build other parts of his argument.
The anti-profilers' campaign against law enforcement is particularly bizarre and perverse given that minorities are vastly more likely to be victims of crimes. What kind of "civil rights campaign" prevents the police from incapacitating criminals who prey on minority groups? If police flinch from law enforcement for fear of generating bad arrest data that will label them racist, the great harm that follows will fall disproportionately on law-abiding residents of lower-income neighborhoods.
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The controversy over "racial profiling" originated in data regarding traffic stops and airport searches that disproportionately affect blacks and ethnic minorities. In his book, Harris traces profiling back to Operation Pipeline, the 1986 Drug Enforcement Administration effort to enlist highway police in interdicting illegal drugs as they are transported by distributors on the nation's highways. Harris's argument that Operation Pipeline resulted in unfair racial profiling by highway patrollers in New Jersey, Maryland, and elsewhere is predicated on studies that falsely assume there are no ethnic differences in driving behavior, and that all ethnicities violate traffic laws at the same high rate. It is also based on the assertion that drug violations are roughly equal across groups.
But a definitive study commissioned by the New Jersey attorney general and designed by the Public Service Research Institute of Maryland found that on the New Jersey Turnpike blacks speed twice as much as white drivers — and are actually stopped less than their speeding behavior would predict. (The study was released after Harris's book had been published.) Elsewhere, Harris conflates statistics on drug use among racial groups (roughly equal) with statistics on drug distribution (as far as we can tell, not close to equal). It is drug distributors that highway patrol officers are seeking out, not drug users.
Several of the studies used by profiling opponents to indict police show nearly equal "hit" rates between whites and blacks despite the fact that blacks were searched at higher rates. (Hit rates are the rates at which searches result in the discovery of contraband.) In Maryland, "73 percent of those stopped and searched on a section of Interstate 95 were black, yet state police reported that equal percentages of the whites and blacks who were searched had drugs or other contraband," groused the New York Times. "Studies have shown that being black substantially raises the odds of a person being stopped and searched by the police — even though blacks who are stopped are no more likely than whites to be carrying drugs," complained the New Republic last year. What these statistically misleading statements overlook is that if the hit rates are about equal, there is no discrimination. It appears the police are focusing on legitimately suspicious behavior, and not simply picking on people by ethnicity.
The war on racial profiling has obscured two important facts: Racial profiling does not exist where the ACLU has persuaded everyone it does, such as on the nation's highways and streets. And it does not exist where it should, in the nation's airports and airlines.
Unfortunately, the facts have yet to catch up with the myths promoted by opponents of criminal profiling. Many Americans — including many of our leaders in politics and law enforcement — continue to treat profiling as illegitimate, as if it were disproved and discredited. That is the product of a political campaign, not of scholarly research. And it is a policy which leaves innocent Americans far more exposed to danger than they ought to be.