Racial Profiling in Palo Alto
Copyright Ó 2003, by Alec Rawls
Under pressure from race activists, Palo Alto began in 2001 to collect statistics on the races of driver’s stopped by the police and whether they were subjected to searches. The first year and a half of data reveal that Hispanics are searched twice as often as whites, blacks three times as often and Asians two thirds as often.
The racial demagogues are saying “I told you so,” while the lawyers are licking their chops. San Francisco attorney Mark Schlosberg thanked Palo Altan’s for opening their wallets: “Without information, you’re powerless to act.” And Palo Alto isn’t done opening the wallet yet. “It certainly seems like racial profiling” said the chair of Palo Alto’s Human Relations Commission Eve Agiewich.
She is absolutely right. The statistics clearly indicate that Palo Alto police are discriminating, against whites. Violent crime rates for blacks range from three times the white rate (rape) to six times the white rate (murder), while by far the largest category of crime, property crime, is committed by blacks at seven times the white rate. 
Thus a random black pulled over by the police would be a little less than seven times as likely as a random white to have some violent or property crime to hide. If police ability to spot signs of criminality is the same regardless of the race of the potential suspect then in the absence of racial profiling, we would expect blacks to be searched at almost seven times the rate of whites.
The actual rate of searches of blacks is less than half that, suggesting that whites are being searched when suspicious particulars are minimal, while blacks are not being searched unless suspicious particulars are substantial. This is just what we should expect when the police must be prepared to defend themselves against bogus charges of anti-black racism.
Other explanations for the low rate of black searches are also possible. If black criminals are better at hiding their criminality than white criminals, that would account for the relative black search rate being lower than the relative black crime rate. Alternatively, it could be that cops are only pulling over the criminally suspicious whites but are pulling over blacks just because they are black. This could lead to a low search rate for blacks, but only if racially suspicious cops stop being racially suspicious once blacks are pulled over, which seems implausible. The stop-all-blacks explanation is also contravened by rates of pull-over by race.
San Jose found that stops by race exactly tracked the racial makeup of neighborhoods that officers were assigned to, while assignments to neighborhoods were made according to rates of crime. Such a breakdown is not possible for Palo Alto because very few blacks live here, meaning most blacks stopped in town are from out of town (most would be from East Palo Alto). Still, the San Jose statistics are indicative of how local police operate.
New York race activists were full of I-told-you-so’s when it was revealed that 85% of those searched in Rudy Giuliani’s very effective “stop and frisk” program were black and Hispanic. But even that search rate was too low, since 89% of crime victims had reported black or Hispanic assailants. Even at 85%, the evidence is that, if New York cops were biased at all, they were searching relatively unsuspicious looking whites and reserving searches of minorities for those who exhibited relatively high levels of suspiciousness, without counting race as a suspicious factor.
In sum, the prima facie evidence is that, if anything, cops are giving blacks and Hispanics a pass and focusing more on whites than race blindness would lead to. Our more criminal minorities are not being racially profiled.
This is a mistake. The police should be profiling race. Focusing police attention on ethnic or racial groups with high crime rates is no different than focusing police attention on neighborhoods with high crime rates. The job of the police is to go where the crime is. There is just one very important proviso that must be adhered to.
The problem with profiling is that it does not just catch those who are guilty of violent and property crimes. It also catches those who are engaged in activities that are not properly any of the state’s business. For instance, if we were to racially profile blacks and Hispanics for criminal activity, then between whites and minorities doing the same drugs in the same ways, more minorities would get hauled to jail for it.
When it comes to catching real criminals, efficiency is all that matters, but laws that pretend there is such a thing as throwing people in jail for their own good are another matter.
Our Bill of Rights is based on the premise that there will always be unjust laws which individuals need to be protected against. Consider the Fifth Amendment right not to incriminate one’s-self. The purpose of this provision is to protect those who are guilty as charged of violating unjust laws. That was its origin: to protect those who were guilty of adhering to their own religious views, in violation of the English blasphemy laws of the 17th century.
Protecting liberty indirectly in this way, by placing restrictions on law enforcement, is terribly inefficient. Much better would be to protect the full ideal of liberty directly in the Constitution. Protection of liberty would then be comprehensive and systematic, instead of the hit and miss of our current system of indirect protection. This superior protection would render indirect protection superfluous, allowing us to get rid of many restrictions on law enforcement. Crime control and protection for liberty would both be greatly enhanced.
That solution is still a ways off. We cannot implement it until we can agree on what is to be included under the full ideal of protected liberty. Still, there is an interim step we can take immediately.
We can allow indirect protections of liberty to be relaxed at the margins on condition that evidence gathered under relaxed restrictions not be used to prosecute any activities that conceivably could be included under the full ideal of protected liberty. Violent predation and property crimes are cases of clear malim in se: things that are wrong in themselves, not just wrong because a majority decided to declare them wrong. Drug use is clearly not clear malim in se, neither is gun possession by non-felons, neither is any adult consensual activity that might be criminalized, such as prostitution or homosexual sex.
We don’t have to be able to sort out any fine dividing line between what is and is not a properly protected liberty. So long as un-cuffed law enforcement can only be used to prosecute what is certainly not protected, it poses no threat to whatever might be properly protected.
At what point racial profiling becomes unconstitutional is an unsettled question, but so long as profiling is only used to prosecute real crime, we should be allowing it as far as possible. If violent criminals are going to hide behind black skin, that is where we should look for them, the same as if they were hiding in any other place where it is efficient to look for them, so long as we do not in the process prosecute people for activities that may not even be wrong.
The main beneficiaries would be law abiding blacks. Those who live in black neighborhoods should be able to live as free from crime as other people. When we prosecute those who are guilty of certain wrong, that is good for everyone. It is only the collateral damage that we need to eliminate: the prosecution of those whose only crime is to violate unjust laws.
This is the same issue that the entire nation now faces with the USA Patriot Act. Given an increasingly technologically empowered terrorist threat, we must from here on out substantially relax some of our restrictions on law enforcement. Ultimately this will require a change from protecting liberty indirectly to protecting it directly, so that we can untie the hands of law enforcement without losing (indeed, while greatly increasing) protection for individual liberty.
In the interim we can take a step in this direction by letting law enforcement do what it must to interdict terrorism, so long as evidence gathered under relaxed restrictions is not used to prosecute any but the most unambiguously heinous crimes.
This article was originally published in The Stanford Review. To see the complete scheme for shifting from indirect to direct protection of liberty, visit Direct Protection. 5/8/03. Alec Rawls can be contacted at firstname.lastname@example.org.
Addendum I: Not so long ago, Palo Alto did profile
I know a local fellow who in the 1980’s did some ride-alongs’s with a high school buddy who was a Palo Alto cop. “We spent the whole night looking for blacks coming over from East Palo Alto,” he says, “then we would tail them until they left.”
Thank God. When East Palo Alto gained “murder capital of the nation” status in 1993, Palo Alto remained relatively unscathed, and you can be sure it was not because the criminals restrained themselves. Palo Alto’s pull-over statistics do not show definitively whether the tactic of tailing blacks is still being used. If blacks are often tailed without being stopped, as used to happen, that would not show up in the data. Let’s hope that this reasonable and effective crime fighting tool has not been abandoned.
Of course the police should not tail all blacks. They know how to focus their attention more efficiently than that. They know to follow, not just young black men, but those young black men who display the marks of status seeking within black America’s criminal subculture. Race has ever been but part of the profile, simply because we have more information than just race. Yet race remains, for the time being at least, one key to effective profiling.
Addendum II: Racial profiling and Mill’s principle of liberty
The fundamental principle of liberty, as stated by John Stuart Mill, holds that no one’s indirect interests (their vicarious interests in what other people think) can be allowed to take precedence over anyone else’s direct interests (their liberty and security interests). Disapproval or offense taking is not sufficient grounds for infringing anyone’s liberty. If you are not being injured directly, bug off.
This priority of direct over indirect interests tells us, not only where government must not intrude, but also where it must intrude. So long as evidence gathered through racial profiling is only used to prosecute unambiguously heinous crimes, the only objection to racial profiling is the humiliation of it, for those who find it humiliating. But humiliation is an indirect interest. It cannot take precedence over society’s direct interests in interdicting and punishing heinous crimes.
A further question is whether profilees should feel humiliation. I don’t see it. If it was blue eyed people who were hijacking airliners and flying them into buildings, I would damn well want every blue eyed person getting on my flight to be profiled, including myself. I would consider it a duty, and while submitting to profiling might be humiliating, submitting to duty is an honor, and this being the larger view, it should take precedence in one’s moral cognition.
Profiling of blacks for common crime is a bit different, but there is self-interest as well as duty here too. Law abiding blacks are all stigmatized by the high rates of black crime, creating a pervasive humiliation. Effective measures to root out the black criminals would reduce this humiliation. Let’s just not use a broader profile than is efficient, and let’s make darn sure to minimize harms to those who are not committing certain wrong.
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 San Jose Mercury News, 4/15/03, 1B, “P.A. police examine data.”
 These relative rates were calculated by combining breakdown of crime by race (available at www.albany.edu/sourcebook/1995/toc_4.html, click on "Race of persons arrested") with census data on the racial breakdown of the population (available at www.census.gov/Press-Release/www/2001/demoprofile.html, click "DP-1" and "PDF"). For each category of crime, relative crime rates were calculated as: (%crime-black/ %population-black) / (%crime-white/ %population-white).
 Study was reported in The San Jose Mercury News sometime in 2002.
 See Are Cops Racist, by Heather MacDonald, Ivan R. Dee Publisher, 2003, p 44 and 111.