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CHAPTER OUTLINE Case Study: Thomas McGowan By Wendy J. Koen...................................................282 The Crime..................................................................................................................284 The Trial....................................................................................................................285 The Exoneration.........................................................................................................285 The Victim.................................................................................................................286 Another Victim...........................................................................................................287 The Root of Racial Profiling........................................................................................287 References................................................................................................................289 Racial Profiling and Miscarriages of Justice By Brent E. Turvey, Aurelio Coronado Mares......................................................290 Criminal Profiling Versus Racial Profiling....................................................................291 Racial Profiling: Efficacy............................................................................................292 Racial Profiling as Racist, Unconstitutional, and Illegal...............................................294 Racist ..................................................................................................... 294 Unconstitutional....................................................................................... 295 Illegal ..................................................................................................... 296 Liability................................................................................................... 296 Racial Profiling: A Resurgence................................................................... 298 Racism and Law Enforcement Culture..........................................................................302 Racial Profiling and Miscarriages of Justice................................................. 305 Conclusion................................................................................................................306 References................................................................................................................307

The Psychology and Sociology of Wrongful Convictions. http://dx.doi.org/10.1016/B978-0-12-802655-7.00009-5 Copyright © 2018 Elsevier Inc. All rights reserved.

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Case Study: Thomas McGowan

Wendy J. Koen

I didn’t do anything. Every time you see me you want to mess with me…I’m tired of it. Every time you see me you want to harass me, you want to stop me. I am minding my business, officer. I’m minding my business, please just leave me alone. Don’t touch me! (He is grabbed by four officers and placed in a choke hold.) I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. 43-year-old Eric Gardner’s last words

There is something fundamentally wrong with the way the criminal justice system in the United States treats minority males. Much of the strife is caused by racial profiling, which relies on racial, religious, or ethnic characteristics to predict whether a person is likely to have committed a crime (Crystal, 2016). As described in greater detail below, racial profiling is defined as the practice “by some police officers of stopping [those] of certain racial or ethnic groups because the officers believe that these groups are more likely to commit certain types of crimes” (Gross & Livingston, 2002, p. 1413). Statistics paint a bleak picture. Although young African-American males make up approximately 6.5% of the population of the United States, they make up over 40% of the prison population [13th (2016)]. One in every seventeen white males is incarcerated—this is an astonishing number. But, even more astonishing, one in ­every three black males is incarcerated [13th (2016)]. This statistic is horrifying.

Case Study: Thomas McGowan

Not only are minorities proportionally overrepresented in our prisons, AfricanAmericans are overrepresented, to an even greater degree, in wrongful convictions. Sixty-three percent of convicts exonerated by DNA evidence are African-American; seventy percent are people of color (Grimsley, 2013). There are many causes for this, including socioeconomic factors and disparities in the quality of education. Also, for decades, at the root of disproportionate numbers of black youths in the prison system, “[b]eing poor in America means living in a devastated, crime-ridden neighborhood. It often means growing up in a family without a father and going to schools where most students fail” (Chipman, 1998). Defendants with darker skin are more likely to receive a longer prison sentence, even when facts such as severity of the crime are controlled for (Burch, 2015). Racism plays a leading role in a system that is more likely to convict innocent black men than any other group (Starr & Sonja, 2016). Though times have changed, and racial biases are no longer as overt as they were in the Scottsboro Boys days,1 the criminal justice system is still marked by racial injustice and the discrimination still manifests itself in similar ways—through racial profiling, police misconduct, indigent defense, jury selection and more. Wrongful conviction cases reveal these biases well— both in individual cases and systemically. Grimsley (2013)

In fact, “[m]any believe that the U.S. penal system is a prime example of institutional racism” (Edwards, McMillon & Turner, 2015, at, p. 35). In simple terms, lawyer and neuroscientist Kim Farbota categorizes some of the more direct reasons blacks are overrepresented: 1. If a black person and a white person each commit a crime, the black person is more likely to be arrested. This is due in part to the fact that black people are more heavily policed. 2. When black people are arrested for a crime, they are convicted more often than white people arrested for the same crime. 3. When black people are convicted of a crime, they are more likely to be sentenced to incarceration compared to whites convicted of the same crime (Farbota, 2015).

It is easy to see how a thread of racism winds itself through every level of the American criminal justice system. However, the United States does not stand alone when it comes to racial profiling. In the United Kingdom, racial profiling is not officially condoned. However, statistics show that it is relied upon (Crystal, 2016). Under section 44 of the UK’s Terrorism Act (2000), police officers must have justifiable cause before they stop and search a target. The Ministry of Justice has 1

“During the 1930s, much of the world’s attention was riveted on the “Scottsboro Boys,” nine black youths falsely charged with raping two white women in Alabama. This case, more than any other event in the South during the 1930s, revealed the barbarous treatment of blacks.” Jim Crow Stories, available as of 3/10/17 at: http://www.pbs.org/wnet/jimcrow/stories_events_scotts.html.

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released statistics that tend to confirm that racial profiling is heavily relied upon in practice (Crystal, 2016). Black people were seven times more likely to be stopped and searched than were white people, while Asian people were over five times more likely to be stopped and searched than were white people (Crystal, 2016). An earlier study showed that one in four of these police “stop-and-searches” were without adequate justifiable cause and were therefore illegal (Elgot, 2013). Similarly, in Canada, young black students are more likely to be stopped than are white students, regardless of such factors as homelessness and criminal activity (Hayle, Wortley, & Tanner, 2016). In Australia, “whole communities of Muslims have been criminalized as “evil” and a “fifth column” enemy within by media, politicians, the security services and the criminal justice system” (Poynting & Mason, 2006). Racial profiling directly affects the number of incarcerated minority males, although it is only one link in a very long chain of causes. Profiling can and does often make the first connection between a minority and the criminal justice system, leaving them vulnerable to other factors that lead to wrongful convictions, such as mistaken eyewitness identification or confirmation bias.

PROFILING LED TO A MUGSHOT WHICH LED TO A WRONGFUL CONVICTION “Rickie Johnson of Louisiana had a mugshot on file because of a misdemeanor traffic violation. The victim identified his mugshot and he was later erroneously convicted of aggravated rape. Rickie Johnson served 25 years in Louisiana prison for a rape he didn’t commit before DNA testing proved his innocence and exonerated him. He was released in 2008 after DNA results in his case implicated another man, who is serving life in prison for another rape several months later in the same apartment complex.” Rickie Johnson, The Innocence Project. Available as of 10/11/16 at: http://www.innocenceproject. org/cases/rickie-johnson/.

This is exactly how Thomas McGowan was wrongfully convicted of rape. Thomas was the target of racial profiling. He was pulled over because he was black. This racial targeting, in the end, cost him over twenty years of his life. McGowan was arrested after he made an illegal turn and the officer discovered he was driving without a license. This was his only crime. This arrest landed Thomas in jail for the night and resulted in his mug shot being taken and placed in the database (Merlan, 2012).

THE CRIME At noon on May 7, 1985, a woman returned to her home to find a burglary in progress. Seconds after she entered her home, she was attacked by an African-American male. The attack was brutal. The intruder beat her severely. At knifepoint, he forced

Case Study: Thomas McGowan

her to undress and then he tied a robe around her head, tied her hands together with his belt, and raped her. Before he fled the scene he casually drank a beer from the refrigerator (National Registry of Exonerations, 2016). The victim saw the assailant’s car as he drove away. During the investigation of this brutal rape and robbery, Thomas’s mugshot from his arrest was placed in a photo lineup. Due to faulty identification procedures, the victim wrongly identified Thomas as her rapist (Merlan, 2012). Because McGowan’s car looked similar to the car the victim saw her attacker driving, the police began to believe Thomas was their man. Thomas was arrested and brought to trial.

THE TRIAL During trial the victim, Debbie Jones,2 identified Thomas as her attacker. This identification, in conjunction with Jones’s testimony of the nightmarish rape, was really all that was needed to convict Thomas. The conviction was easily obtained and was clinched when the prosecutor continued to rely on the supposition that when jurors see a young black male they see a criminal. The prosecutor demanded the jury: “Look at McGowan.” Then he tied McGowan’s “look” to the crime by saying, “[y]ou know he is violent, you know what he’s done, you know, the rape, the robbery, the burglary. You know, how many does it take? How many women do you have to rape? How many houses do you have to burglarize?“ (McGowan v. State at p. 318). It was as if simply looking at McGowan, a young black male defendant, would insure that the jury would believe he committed the brutal rape and burglary. In this case, the prosecutor was right, and McGowan was convicted of aggravated sexual assault and burglary and sentenced to two consecutive life terms in prison.

THE EXONERATION The Innocence Project took McGowan’s case in April 2007 (The Innocence Project, 2008). Very quickly, the Dallas County District Attorney’s Office assisted in the retrieval and testing of the DNA evidence from the rape kit. Both Mike Ware, head of the Conviction Integrity Unit, and Michael Moss, Assistant District Attorney, did nothing to hinder the testing, but instead cooperated with the Innocence Project and handled the case rapidly. Unlike usual post-conviction proceedings, where the District Attorney fights DNA testing and keeps the case in litigation for years, McGowan’s case was resolved rather handily once the DNA evidence was discovered to be testable. Thus, in April of 2008, one year after the Innocence Project became involved and 23 years after McGowan was convicted and imprisoned, DNA testing proved he was innocent and he was released from custody.

2

Debbie Jones is a pseudonym used to protect the victim’s privacy.

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THE VICTIM Jones was extremely relieved when Thomas went to prison and she never questioned that the right man had been convicted (Jones, 2016). In the years after the conviction, Jones kept track of Thomas and felt safer knowing he was in prison. That feeling of safety ended in 2008 when Jones received a letter informing her that Thomas had filed a writ to get his DNA tested and the writ had been granted. She learned that Thomas had recruited the assistance of the Innocence Project who worked quickly with the Dallas County District Attorney’s Office to secure the biological evidence remaining from the rape kit and to approve DNA testing. This caused Jones much anguish and confusion. Her confusion turned to panic when, just a few weeks after she received the letter, officers came to her office with Jones’s mother in tow. Jones knew immediately that something was wrong. The officers broke the news—the DNA testing showed that Thomas McGowan was not Jones’s attacker. Jones was immediately gripped by feelings of disbelief, anger, confusion and fear (Jones, 2016). It just could not be true. She had memorized the details of her attacker’s face. She was sure she picked the write mugshot from the lineup. Jones later would describe how the news affected her: I was suffocating with fear because I had two days until he was going to be released. One of my sons moved back home with me, and my friends helped me secure the doors and windows on my house. I was terrified that Thomas would find me and…. kill me-especially now, having gone to prison, wrongly convicted. Having all this happen was like a violation all over again. Nobody asked my permission. Nobody warned me this was going to happen. I went back into a terrible depression, and then into counseling. If it hadn’t been for my family and friends, I don’t know how I could have gotten through that period of time. Going through this process was terribly isolating, and every day seemed like a struggle just to survive. Going through the whole ordeal again, reliving the entire tragic event was like being revictimized; yet this time, you also have the guilt to deal with that you helped put a man in prison who was not guilty. (Jones)

Jones eventually came to peace with the discovery that Thomas McGowan was innocent. A year after McGowan was exonerated and freed, Jones was ready to meet him (Merlan, 2012). Jones recalls “it was terrifying for me, and it was terrifying for [Thomas]…I could tell” (Merlan, 2012). Jones explained how she had come to peace with Thomas: “I had to come to a point to forgive him about this. He’s a young black man being accused by a young white woman. I don’t think we were hugely racially tense at that point, but I can see how he probably viewed that, was like, “I’m going down no matter what and there’s nothing I can do about it.’ How upset would I be? How sad would I be?’ (Merlan, 2012). Jones also lamented that “[g]uilt and remorse follow everyone associated with exonerations, not just victims.” Mike Corley, the investigator at the time of Thomas’s trial, still struggles to figure out how he and the others working the case could have made such a serious mistake.

Case Study: Thomas McGowan

Corley said, “[t]his [case] is a negative for me, in my career, my life and everything else” (Merlan, 2012). Corley is encouraged, however, that Dallas County has instituted a double-blind system for showing photos of suspects. Using the new procedure, it is important that the officer showing mugshots to witnesses does not have knowledge about who the suspect is. In this way, the officer cannot inadvertently signal who the suspect is (Merlan, 2012).

ANOTHER VICTIM Both Thomas McGowan and Debbie Jones were victimized by the failure of the criminal justice system to punish the actual perpetrator. There was one more victim. After Thomas’s exoneration, the police ran the perpetrator’s DNA through CODIS and the real rapist was identified as Kenneth Bell. The police discovered that a year after Jones was raped, Kenneth Bell raped another woman in the course of a robbery. Bell was sentenced to 30 years for that crime. It is sobering to think that Bell would not have been free to rape the second victim had the criminal justice system arrested and convicted the man who attacked Jones.

BRANDON MAYFIELD On March 11, 2004, during the morning commute, terrorists detonated bombs on four crowded commuter trains in Madrid, Spain (Broeders, 2006; Spinney, 2010). Spanish investigators immediately shared electronic copies of the fingerprints from the scene with agencies worldwide, including the US Federal Bureau of Investigation (FBI). The FBI ran the fingerprints through its Integrated Automated Fingerprint Identification System. Based on the FBI’s analysis of one fingerprint, the Portland Division of the FBI began to investigate Brandon Mayfield. One important factor caused the FBI to see Mayfield as a terrorist—he and his wife were practicing Muslims. Even though there were discrepancies in the fingerprint analysis and it was not a true match, Mayfield was jailed, in large part, because of his religion. Spanish investigators would later confirm that the print did not belong to Mayfield and did belong to a known terrorist. The FBI continued to cling to their belief that Mayfield was culpable, until Spanish investigators convinced them that Mayfield was not their man. Mayfield was eventually released from jail, but not until much damage had been done to his business, his family, and his feeling of security as an American Citizen.

THE ROOT OF RACIAL PROFILING Like most cases where racial profiling has caused a wrongful conviction, the injustice McGowan endured was due to much more than an initial stop that was a product of racial profiling. However, also like in most cases, without the initial profiling, McGowan would never have been a suspect. Because profiling is at the root of many wrongful convictions, we must understand its legal status.

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FOURTH AMENDMENT The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is abundantly clear that racial profiling is not constitutional. However, regardless of the straightforward language of the fourth amendment (see sidebar above), racial profiling is accepted when there is a loophole: probable cause that a traffic violation has occurred. The Supreme Court of the United States held unanimously that Fourth Amendment analysis was so radically objective that an otherwise valid search or arrest would not be invalidated even if an officer’s decision to pursue an individual was based on race (Whren v. United States, 1996). This Court finding made the officers’ motivation irrelevant and immediately functionally legitimized racial profiling (Chin & Vernon, 2015). Thus, “[a] stop is justified if an officer has probable cause that a traffic violation has occurred, regardless of the officer’s actual motivation.” (Chin & Vernon, 2015 at p. 884). In other words, an officer’s use of a traffic violation as a pretext for a racially motivated stop is allowed (Whren v. United States, 1996). As you may imagine, the controversy over Whren’s functional validation of racial profiling in 1996 has grown over time. Scholars have been overwhelmingly critical of Whren. Reasons include that it puts all motorists at risk of arbitrary police detention, underestimates the frequency or costs of racial profiling, causes resentment and hostility between the community and the police, ignores the psychological realities of police behavior, overlooks the problem of police perjury, leaves victims of unconstitutional behavior remediless, facilitates the financial self-interest of police agencies through forfeitures, and ignores evidence demonstrating the ineffectiveness of racial profiling. Chin and Vernon (2015) at p. 886 [internal citations omitted]

As we see in the United States, almost daily, there is real danger in situations where minorities are pulled over or stopped. As discussed more fully below, it seems that many police officers immediately see African-American males as a threat and often react too quickly, sometimes with deadly force. For AfricanAmericans, “racially biased harassment in poor neighborhoods is an all too common occurrence” (Grimsley, 2013). Relentless police harassment can spawn not only dangerous life-and-death interactions, unnecessary provocation, and pointless interrogations, it is also clear that this same harassment, caused by racial profiling, sometimes results in wrongful convictions that would never have occurred but for profiling (Katz, 2016). Racial profiling led directly to Thomas McGowan’s decades long nightmare. But for being pulled over because he was black, McGowan would never have been in the photo lineup and would never have been linked to Jone’s rape and burglary. He is not alone, and steps must be taken to reduce the impact of racism on the disproportionate incarceration of minorities.

Case Study: Thomas McGowan

REFERENCES Broeders, A. P. A. (2006). Of earprints, fingerprints, scent dogs, cot deaths and cognitive contamination: A brief look at the present state of play in the forensic arena. Forensic Science International, 159(2), 148–157. Burch, T. (2015). Skin color and the criminal justice system: Beyond black–white disparities in sentencing. Journal of Empirical Legal Studies, 12(3), 395–420. Chin, G. J., & Vernon, C. (2015). Reasonable but unconstitutional: Racial profiling and the radical objectivity of Whren v United States. George Washington Law Review, 83(3), United States (September 2, 2015), April 2015. Available from SSRN: http://ssrn. com/abstract=2698443. Chipman, K. (1998). Violence in the African-American community as a public health issue: Annotated bibliography Available as of 10/11/16 from https://academic. udayton. edu/ health/01status/98chipma. htm. Crystal, G. (2016). The facts on racial profiling. The Civil Rights Movement Available as of 10/13/16 from: http://www. civilrightsmovement. co. uk/facts-racial-profiling.html. Edwards, P. A., McMillon, G. T., & Turner, J. D. (2015). Change is gonna come: Transforming literacy education for African American students. Teachers College Press 35. Elgot, J. (2013). Stop and search unlawful in one in four cases, police watchdog finds. The Huffington Post, UK. Available as of 10/13/2016 from: http://www.huffingtonpost. co.uk/2013/07/08/stop-and-search-unlawful_n_3561409.html. Farbota, K. (2015). Black crime rates: What happens when numbers aren’t neutral. The Huffington Post. Available as of 10/11/16 from: http://www.huffingtonpost.com/kim-farbota/ black-crime-rates-your-st_b_8078586.html. Grimsley, E. (2013). African American wrongful convictions today. Available as of 10/4/16 at: http://www.innocenceproject.org/african-american-wrongful-convictions-today/. Gross, S. R., & Livingston, D. (2002). Racial profiling under attack. Columbia Law Review, 1413–1438. Hayle, S., Wortley, S., & Tanner, J. (2016). Race, street life, and policing: Implications for racial profiling 1. Canadian Journal of Criminology and Criminal Justice, 58(3), 322–353. Jones, D. (2016). Profiles in DNA: Debbie Jones. National Center for Victims of Crime. Available as of 10/14/16 from: https://victimsofcrime.org/our-programs/dna-resource-center/ profiles/debbie-jones. Katz, L. R. (2016). Symposium Whren at twenty: Systemic racial bias and the criminal justice system—introduction. Case Western Reserve Law Review, 66(4), 923. Merlan, A. (2012). How rape victims cope when their alleged attackers are exonerated. Available as of 10/7/16 from: http://www.dallasobserver.com/news/how-rape-victimscope-when-their-alleged-attackers-are-exonerated-6426016. National Registry of Exonerations. Available as of 10/7/16 from: https://www.law.umich.edu/ special/exoneration/Pages/casedetail.aspx?caseid3455. Poynting, S., & Mason, V. (2006). Tolerance, freedom, justice and peace? Britain, Australia and anti-Muslim racism since 11 September 2001. Journal of Intercultural Studies, 27(4), 365–391. Starr, & Sonja, B. (2016). Testing racial profiling: Empirical assessment of disparate treatment by police. University of Chicago Legal Forum, 485. Spinney, L. (2010). Science in court: The fine print. Nature News, 464(7287), 344–346. The Innocence Project (2008). Available as of 3/2/17 at: 23 years after improper photo lineup led to wrongful conviction, DNA Proves Thomas McGowan’s Innocence in Dallas County Rape. https://www.innocenceproject.org/23-years-after-improper-photo-lineup-led-towrongful-conviction-dna-proves-thomas-mcgowans-innocence-in-dallas-county-rape/.

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Whren v. United States, 517 U.S. 806 (1996). 13th (2016). Documentary film directed by Ava Duvernay. Available from: https://www.netflix.com/title/80091741

FURTHER READINGS McGowan v. State, 729 SW 2d 316—Tex: Court of Appeals, 5th Dist. 1987, at p. 318.

Racial Profiling and Miscarriages of Justice Brent E. Turvey*,3, Aurelio Coronado Mares**,4 * **

The Forensic Criminology Institute, Sitka, AK, United States The Forensic Criminology Institute, Aguascalientes, Mexico

Racial profiling is the law enforcement practice of identifying individuals as criminals, or criminal suspects, based on perceptions regarding their race. This includes the use of factors such as race, skin color, nationality, ethnicity, and manner of dress as predictors (Reynolds, 2007; NIJ, 2013). Racial profiling treats these narrow ethnic indications quite improperly, as though they are predictive of criminal propensity (Ryberg, 2010). Also referred to as discriminatory policing, it effectively invalidates the presumption of innocence across broad groups, while at the same time serving to legitimatize stereotypes, bias and prejudice steeped in ignorance (Dunn, 2016). The practice of racial profiling has a long and terrible history in the United States, going back to the slave patrols of the 1700s (Rushing, 2013).5 As we will discuss in this chapter, the practice is poorly conceived, unsupportable, and corrosive to law enforcement’s operational and cultural integrity. It is also a violation of civil rights (NIJ, 2013). Even recently, professional law enforcement agencies understood this, 3

Brent E. Turvey, PhD is a court qualified forensic scientist and criminologist, focusing on violent crime scene analysis and reconstruction. He has written a number of textbooks on subjects related to forensic science, criminal investigation, criminal profiling, and miscarriages of justice, all based on research and casework. He is the Director of the Forensic Criminology Institute in Alaska. 4 Aurelio Coronado Mares is a court qualified forensic psychologist from Aguascalientes, Mexico. He specializes in cases involving allegations of police misconduct and torture. He is also the author of numerous textbooks on criminal investigation, false allegations, and criminal psychology. He is the Director of Cienca Aplicada. 5 As explained in Rushing (2013), “In 1704, South Carolina founded the first slave patrol in which white men policed black slaves on plantations and hunted for escaped slaves. Black people, the majority of which were slaves in South Carolina and other southern states, had to show passes to prove they had permission to be off the plantation, or, if they had been liberated, they had to carry freedom papers to prove they were free. Black people were subjected to interrogations and harassment and whippings and other physical punishment—even death—if they were determined to have run away. Like modern-day racial profiling, a black person’s skin color, not their actions, made them subject to discriminatory treatment from law enforcement.” One cannot help but see the parallels to Arizona Senate Bill 1070: “The Support Our Law Enforcement and Safe Neighborhoods Act,” which enables law enforcement to demand proof of citizenship based on an undefined reasonable suspicion. This law essentially promotes racial profiling.

Criminal Profiling Versus Racial Profiling

as did the general population. Racial profiling was actually on track to be dismantled as an accepted practice in the United States by the end of the 1990s. Then came the terrorist attacks of September 11, 2001 (aka, 9/11; Reynolds, 2007; p.667): By the mid-1990s society treated racial profiling by law enforcement as the great taboo. In 2000 eighty percent of Americans surveyed in a Gallup poll stated that they had not only heard of the act of profiling but believed the practice should be stopped. Between January 1999 and September 2001, thirteen states had moved to pass legislation that banned racial profiling or required police departments to collect data on the act. Yet, in the wake of the September 11 terrorist attacks, the consensus of profiling in the nation changed. All nineteen of the hijackers were Arabic men. In no less than “a month [after] the attack, surveys showed that a majority of Americans favored more intensive security checks for Arab and Middle Eastern people.” Clearly, however, the profiling had to do with gender as well as race. Gender was the basis of the new terrorist profile because all of the hijackers were men; historically the … members of such fundamentalist Islamic groups are male.

Unfortunately, this devastating loss changed the complexion of the United States in a way that is still being felt with respect to public perception and related legislation. It also began the resurrection of racial profiling, which we will discuss shortly. The purpose of this chapter is to explore the relationship between racial profiling and miscarriages of justices as a causal factor. This will involve the following discussion: racial profiling versus criminal profiling; racial profiling as racist, unconstitutional and illegal; the resurgence of racial profiling; racism and law enforcement; and the efficacy of racial profiling. We will conclude with a discussion regarding the relationship between racial profiling and miscarriages of justice.

CRIMINAL PROFILING VERSUS RACIAL PROFILING Criminal Profiling and Racial Profiling are often conflated by those with a legal or political agenda. However, they are not the same thing. This is established with even the most cursory review of the literature. Criminal profiling involves making inferences about the physical, habitual, emotional, psychological, and even vocational characteristics of criminals. However, there are many different methods of criminal profiling, and all vary with respect to the soundness of underlying theory, logic, and insight. Some methods are abstract, general, and trait predictive; others are concrete, specific, and state descriptive. Some rely on offender group statistics; some rely solely on experience; and some rely on examining case-specific behavioral evidence.6 6

One of the authors (Turvey) has written a textbook on criminal profiling, which is now in its 4th edition (Turvey, 2011). It does not include a chapter on racial profiling because of the lack of empirical support for such practices, along with its unconstitutionality and illegality. It does, however, provide a chapter on profiling terrorists, written in cooperation with the Psychological and Behavioral Profiling Unit of the Singapore Police. In that Chapter, the dangers of profiling terrorists based on individual variables such as gender, religion or nationality are discussed. Because of the resurgence of racial profiling, and the issues identified in this chapter, future editions will address this illegal practice more extensively.

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The method used by the authors, for example, is referred to as Behavioral Evidence Analysis (BEA). As explained in Turvey (2011): BEA is an ideo-deductive method of crime scene analysis and criminal profiling. It involves the examination and interpretation of physical evidence, forensic victimology, and crime scene characteristics. For the purposes of criminal profiling, the results of these individual examinations can be analyzed for behavioral patterns and clusters that suggest offender characteristics of investigative or forensic relevance. BEA is ideographic in that it is concerned with studying the aspects of individual cases and offenders through the lens of forensic analysis—not groups of similar cases and presumably similar offenders. It is deductive in that inferences and conclusions are not inductive theories or nomothetic predictions in disguise. They are based on critical thinking, the scientific method, and analytical logic. BEA conclusions are meant to be the result of the most complete understanding of the events surrounding the commission of the crime. A BEA-style crime scene analysis or criminal profile will not render a conclusion unless the evidence exists to support it. Instead of relying on averaged (nonexistent/abstract) offender statistics, BEA profilers conduct a detailed examination of a scene and related behaviors to determine which characteristics are evidenced.

For examples of BEA related forensic examinations, readers may reference Turvey and Esparza (2016). Racial profiling, as already discussed, involves an inference or prediction regarding criminal propensity and suspect guilt based on a visible traits (e.g., race, skin color, nationality, ethnicity, and manner of dress as predictors). It does not look for patterns based on multiple factors; it reinforces racism, prejudice, and related stereotypes based on uninformed observation. The difference between criminal profiling and racial profiling is ultimately one of context. Criminal profiling is interested in examining patterns of behavior within a framework of relationships, histories, and conditions. Racial profiling looks at one thing, out of context, and discriminates. Ultimately, one is an attempt to get beneath surface details and understand an individual’s patterns and motives; the other is an attempt to reinforce a prejudice in order to avoid learning about the individual, beyond how they appear on the surface.

RACIAL PROFILING: EFFICACY Racial profiling does not work. In other words, there is zero empirical evidence to suggest that it predicts or prevents crime, or that it accurately identifies criminals. The only thing that it reliably accomplishes, as we have demonstrated, is the erosion of public trust and the creation of liability related to civil rights violations and excessive use of force (e.g., 1983 civil rights lawsuits; Blanks, 2016; Natarajan, 2014). Racial profiling persists because of a fallacy of logic referred to as the availability heuristic: answering a question of probability by asking whether examples come

Racial Profiling: Efficacy

readily to mind. What we recall most readily becomes what we believe is likely. The suspicion heuristic is related, as discussed in Richardson and Goff (2012, pp. 310–311): This substitution of representativeness and availability in the context of judgments of criminality (we use the phrase “judgments of criminality” to refer to the assessment that another is engaged in criminal activity or poses a threat) is what we term the “suspicion heuristic.” Use of the suspicion heuristic cannot help but disadvantage Blacks. This is because Blacks serve as our mental prototype (i.e., stereotype) for the violent street criminal. Furthermore, the tendency for black suspects to be over-represented in media portrayals of violent street crime makes the Black-as-criminal stereotype readily available. However, heuristic errors in determinations of suspicion can also burden other groups stereotyped as criminal in certain situations because what triggers the suspicion heuristic is the existence of the stereotype. For instance, Latinos (or those appearing to be) are stereotyped as drug dealers, gang members, and undocumented immigrants; people believed to be Muslim are stereotyped as terrorists; and Whites are stereotyped as drug buyers when they are in nonwhite neighborhoods. Although it is easy and familiar to resort to conscious racial bias to explain racial errors in judgments of criminality, the suspicion heuristic can explain how these mistakes occur even in the absence of a consciously biased actor. Imagine egalitarian-minded individuals walking down a dark street at night. It would not be surprising for them to think about the possibility of being mugged or attacked. Although they are not aware of it, simply thinking about crime may automatically trigger the link between non-Whites and criminality below the level of conscious awareness. As a result, their attention is more likely to be drawn to non-Whites present in the environment—a type of unconscious racial profiling. Notice, then, that even before individuals make a judgment of criminality, they may subject non-Whites to greater scrutiny. This can occur regardless of whether individuals intend it. Once their attention is captured, they will make a judgment about the likelihood that the stranger is engaged in criminal activity. However, they may substitute a judgment of how closely this person resembles a criminal stereotype instead. Hence, if the person being judged is non-White, individuals are more likely to make a mistaken judgment of criminality. The suspicion heuristic can bias individuals’ judgments even if they consciously reject the stereotype. The decisions of the best-intentioned individuals may be affected by the mere existence of the stereotype because of the associative networks our minds use to process information. That is, merely being aware of the stereotype is sufficient to be influenced by it in ways that disadvantage those stereotyped as criminal, regardless of the perceiver’s intentions or character. Even worse, people’s heuristic criminality judgment will feel easy, familiar, and true because they cannot evaluate information processes that proceed beneath awareness.

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The authors have found that a great many law enforcement officers rely upon “information” gleaned from film, television, and other fictional references in the absence of proper education and training (see also Turvey, 2011). This makes the inexperienced particularly susceptible; and these media stereo-types become hardened self-fulfilling beliefs that can last an entire career.

RACIAL PROFILING AS RACIST, UNCONSTITUTIONAL, AND ILLEGAL There are a few related issues that must be understood about racial profiling before we continue. First, it is racist. Second, it is unconstitutional. And third, it is illegal. This means racial profiling only serves as a mechanism for legitimizing or cloaking individual and/or institutional prejudice. The inevitable result is civil liability in federal court.

RACIST Racial profiling is racist, by definition. Racism is “the subordination of any person or group because of skin color or other distinctive physical characteristics. Racism, like sexism, is reflected in both individual and institutional acts, decisions, habits, procedures, and policies that neglect, overlook, exploit, subjugate, or maintain the subordination of the individual or the group” (Appleby, Colon, & Hamilton, 2011, p. 66). Racial profiling involves inferring suspect criminality or guilt based on race and/or perceived racial factors. The natural consequences of such discriminatory inferences can include deportation, or the loss of property, liberty, and even life. Apart from internment or concentration camps, there is no greater potential for subordination or marginalization. Institutional racism is defined as a set of cultural values, policies and/or procedures within any organization that consistently provides for the unfair treatment of a specific class of individuals. This is discussed in the context of research compiled in Chaney (2015, pp. 313–314): In essence, institutionalized racism is structured into political and social institutions and occurs when institutions, including corporations, governments and universities, discriminate either deliberately or indirectly, against certain groups of people to limit their rights (Better, 2002; Staples, 2011; Troyna & Williams, 2012; Williams, 1985). Race-based discrimination in housing, education, employment, health and public safety are forms of institutional racism. Furthermore, this form of discrimination reflects the cultural assumptions of the dominant group, so that the practices of that group are seen as the norm to which other cultural practices should conform (Andersen & Taylor, 2006; Armour, 1997; Bonilla-Silva, 2009; Feagin & Elias, 2013; Phillips, 2011; Reilly, 2015).

To be clear, racial profiling can be the result of individual racist attitudes and beliefs; or it can be emulated and learned as a function of institutionally racist values

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and policies. Often, however, it is both—as individual racist attitudes and beliefs cannot survive where leadership and institutional culture forbid them (see generally Crowder & Turvey, 2013).

UNCONSTITUTIONAL Racial profiling is unconstitutional because it violates constitutionally protected civil rights. This includes 4th Amendment protections against unreasonable search and seizure. As explained in Feder (2012): The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In its 1968 Fourth Amendment ruling, Terry v. Ohio, the Supreme Court found that reasonable, articulable suspicion was sufficient grounds for a police officer to briefly stop and question a citizen. Such suspicion must not be based on the officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but on the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry employed a “totality of circumstances” test to determine the reasonableness of police investigatory stops.

Prevailing caselaw is further explained for the explicit benefit of federal officers and agents in the Department of Justice Guidelines on racial profiling (DOJ, 2014; p. 2): The [United States] Constitution protects individuals against the invidious use of irrelevant individual characteristics. See Whren v. United States, 517 U.S. 806, 813 (1996). Such characteristics should never be the sole basis for a law enforcement action. This Guidance sets out requirements beyond the Constitutional minimum that shall apply to the use of race, ethnicity, gender, national origin, religion, sexual orientation, and gender identity by Federal law enforcement officers. This Guidance applies to such officers at all times….

Racial profiling also violates the 14th Amendment protections regarding due process and equal treatment under the law (Dunn, 2016). Section 1 of the 14th Amendment reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This Amendment states that all citizens are equal and may not be treated differently; and that they are entitled to the same constitutional protections. In other words, Christians are not to be afforded special consideration or status above Muslims; and those with white skin are not to be given more deference than those who are brown

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or black. Effecting policy, or writing legislation, as though there are some Americans who are more worthy of constitutional protections than others is a violation of civil rights. Therefore, while some leaders will speak and act as though racist beliefs have community support, related policies and actions will not be protected by the courts.

ILLEGAL Racial profiling is generally illegal. In other words, it violates the law (state and federal). This is true for at least three reasons. First of all, most states have passed antiracial profiling legislation; or they have state constitutions affording rights that mirror federal antidiscrimination, due process, and equal treatment provisions (see generally: Coble, 2015). Related laws and provisos can make racial profiling illegal at the state level, and are a powerful tool for holding local and state level law enforcement accountable. Second, Title VI of the 1964 Civil Rights Act forbids discrimination based on race or ethnicity in any federally assisted program or activity. Given that most states, municipalities, and law enforcement agencies accept federal funds, this subordinates them to Title IV. As explained in Feder (2012, p. 12): …courts have held that Title VI permits a private right of action for individuals to seek injunctions against recipients of federal funding, including police, for a policy or practice that discriminates on account of race. Moreover, local police departments that receive DOJ assistance are subject to agency regulations providing that recipients may not “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination ... or have the effect of defeating or substantially impairing” program objectives because of race.

Third, all 50 states are subordinate to the United States Constitution, it’s Bill of Rights, and the Civil Rights Act of 1964 which “outlawed discrimination in public places and facilities and banned discrimination based on race, gender, religion or national origin by employers and government agencies” (Stewart & Escobedo, 2014). So even if local or state law enforcement is not prohibited from engaging racial profiling, they are still part of the United States. Moreover, it is often the case that when local law enforcement is sworn in, their oath includes upholding the Constitution of the United States.

LIABILITY Racial profiling results in individual and institutional liability in federal court by virtue of 42 U.S.C. Section 1983. As explained in Feder (2012, p. 10): Judicial decisions reflect the crucial role that racial record-keeping and statistics may play in mounting a successful legal challenge to racial profiling. This is because the plaintiff must prove both racial motivation and “discriminatory effect” of law enforcement practices in federal lawsuits under 42 U.S.C. Section 1983. Section 1983 provides a monetary damages remedy for harm caused by deprivation of federal constitutional rights—including equal protection of the laws—by

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state or local governmental officials or those acting in concert with them, that is, under “color of law.” Claims against federal defendants—usually in the context of border, customs, or airport searches—may be maintained directly under the Constitution as a Bivens action, or under the Federal Tort Claims Act.

In other words, law enforcement officers, and their respective agencies, may be held liable in civil court at the federal level for engaging in racial profiling. For example, consider the ongoing litigation involving Sheriff Joe Arpaio of Maricopa County, Arizona. He continues to engage in discriminatory practices and racial profiling despite federal court orders to cease and desist, at great cost to the community and the reputation of local law enforcement. Details were reported in Sanders (2016): The Maricopa County Board of Supervisors voted Wednesday to pay $4.5 million in legal fees to attorneys representing a group of plaintiffs who sued Sheriff Joe Arpaio in a racial-profiling case. Originally, lawyers from groups including the American Civil Liberties Union and Mexican American Legal Defense and Educational Fund sought $5.9 million. Plaintiff attorneys say most of the costs were generated in the past three years and stem from Arpaio’s violation of court orders and plaintiffs’ efforts to hold him in contempt of court. The federal judge ruled Arpaio was in civil contempt for ignoring an order to stop his immigration patrols. The judge has since asked federal prosecutors to bring criminal contempt charges. Taxpayers already have spent $10.4 million on attorney fees in the case.

Prior to this, a federal judge found Sheriff Arpaio “in civil contempt of court. Judge G. Murray Snow says Arpaio has repeatedly and knowingly disobeyed his orders to cease policing tactics against Latinos that he says amount to systemic racial profiling” (Kennedy, 2016).7 Sheriff Arpaio is widely considered among the most openly racist law enforcement officers in the nation, and lawsuits against his agency and county for related civil rights violations are continuous. Other cases include: • Institutional Racism: Former Rutland City Police Officer Andrew Todd, an African-American, brought a civil action against Rutland City alleging racism and other misconduct; he settled for $975,000 (Keck, 2015). • Institutional Racism: “Honolulu City Council members agreed to pay $4.7 million to settle a lawsuit that says the Honolulu Police Department engaged in racial and sexual discrimination. The federal lawsuit was filed in 2010, saying that the Honolulu Police Department put officers’ lives in danger when they were refused backup during nighttime traffic stops. The plaintiffs say they faced retaliation after speaking out about racial discrimination, and police and city officials hid evidence that would have bolstered their case” (Riker, 2016). 7

Joe Arpaio was ultimately found guilty of contempt owing to his continued unconstitutional immigration arrests in violation of court orders. However, in August of 2017 he was pardoned by President Donald J. Trump.

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• Racial Profiling: “A Charleston jury awarded $1.3 million to a black couple who said they were arrested because they accused a white state trooper of racial profiling during a 2012 traffic stop. The civil rights lawsuit by Catherine and Jerome Newkirk, who were pulled over for speeding by Trooper James Enzor in Florence County lasted three days” (Lowe, 2017). • Racial Profiling: “UCLA has agreed to pay $500,000, including $350,000 in scholarships, to settle a claim by a prominent African American judge over alleged mistreatment and racial profiling by campus police during a traffic stop last year, officials announced Friday. Los Angeles County Superior Court Judge David S. Cunningham, who is a former president of the Los Angeles Police Commission, and his attorney will receive $150,000. An additional $350,000 will establish a scholarship fund named after Cunningham and administered by the UCLA Black Alumni Assn. for undergraduate or law students, according to a statement from both sides in the dispute” (Gordon, 2017).

RACIAL PROFILING: A RESURGENCE Since 9/11, racial profiling has experienced a resurgent popularity. Outlier sentiments began as uninformed post-attack punditry, made in support of the few openly racist elements remaining in law enforcement (see generally Benson, 2001; Turvey, 2012).8 First the language was anti-Muslim; then it expanded to include illegal Mexican immigrants. Then these became law, with the ratification of The Patriot Act, which made Muslims and others vulnerable to racial profiling (Akram, 2002; Kleiner, 2010; Pitt, 2011). Eventually, The Patriot Act, and the subsequent Freedom Act, emboldened both law enforcement and political leaders to go public with longstanding, but privately held, racist opinions.9 This meant the open endorsement of policies and legislation that allowed or encouraged racial profiling against these two groups. This set the stage for what was to come in the 2016 presidential election (Zaman, 2016). After 2001, there was also a documented uptick in racially motivated crime across the nation (Ansari, 2016; Brown, 2016).10 Most of the victims of hate crimes 8

Former NYPD Police Officer Richard “Bo” Dietl often refers to himself as criminal profiler during media appearances. During a January 17, 2007 interview on Fox News’ The Real World with Nick Cavuto, he stated: “Don’t you watch 24? They’re out there. Terrorist cells are out there.” Mr. Dietl was citing the fictional television program 24 as evidence that terrorist cells from the Middle East were, at the time, working inside the United States. And that, therefore, the racial profiling of all Muslims as potential terrorists (i.e., anyone who wears a turban) is reasonable, useful, and necessary in the wake of 9/11. It should not be necessary to explain how absurd this reasoning is. 9 For a review regarding the differences between these two pieces of legislation, see Dilanian (2015). 10 The most recent available FBI hate crime data comes from 2015, and it only addresses reported crime. The data breaks down as follows: “There were 5,818 single-bias incidents involving 7,121 victims. Of those victims, 59.2 percent were targeted because of a race/ethnicity/ancestry bias; 19.7 percent because of a religious bias; 17.7 percent because of a sexual orientation bias; 1.7 percent because of a gender identity bias; 1.2 percent because of a disability bias; and 0.4 percent because of a gender bias” (FBI, 2016).

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have been targeted because they are black; but victims targeted due to Mexican or Muslim heritage have been on the increase (FBI, 2016). This has occurred along with the increased visibility of, reporting of, and attention to police shootings involving unarmed black men. There can be no question that this was the product of awareness made possible through both traditional journalism and “viral” social media. As explained in Katz (2016, p. 923): “Street relations between the police and AfricanAmerican communities have seemingly reached new levels of conflict, or else body cams and cell phones are finally disclosing the extent and truth about such interactions.” National concern over the issue of racial profiling was all but forced with the shooting of 18-year-old Michael Brown, an unarmed black man. He was killed by Officer Darren Wilson of the Ferguson Police Department in Missouri, on August 9, 2014. As explained in Calabresi (2015): The violent protests in Ferguson last August were driven by the indelible image of an unarmed black teenager, Michael Brown, lying in the street after a white police officer, Darren Wilson, shot him dead. But the outrage in Ferguson, and the national debate that accompanied it, were also about something harder to see: racism, and the allegation that Ferguson’s largely white cops were deeply, systematically and violently prejudiced against black residents. Now, as one of his last acts as U.S. Attorney General, Eric Holder has painted a picture of Ferguson’s entrenched racism that is clear and unmistakable.

Despite overwhelming evidence against Officer Wilson, the prosecutor in the case was able to use the Grand Jury as a tool to prevent an indictment for murder.11 This is a practice common when police officer shootings result in an arrest that is dictated by public outcry as opposed to a prosecutor’s political ambition (Davey & Bosman, 2014; McKinley & Baker, 2014). As explained in Mirzoeff (2016), subsequent to a scholarly review of grand jury proceedings once they were finally made public: “the grand jury prosecutors turned the event into a high-definition visual space in which only physical evidence and police testimony could be trusted, discounting all eyewitness accounts. This reading shows that the event lasted less than a minute. Discrepancies, contradictions, and oversight abound in the prosecution case that was never cross-examined” (p.49). Even before the details of the Grand Jury manipulations were made public, the outcome was contested. The immediate result was nationwide riots and protests, as already mentioned. National unrest over the decision by the Grand Jury in Ferguson led to a civil rights investigation into the local Police Department by the United States Department of Justice. Their inquiry was divided into two separate issues. With respect to Officer 11

The authors have had many occasions to review Grand Jury proceedings in relation to criminal trials, in their capacity as forensic experts. The Grand Jury is secret, and involves only the case put on by the prosecutor. The routine use of inconsistent, false, and exaggerated testimony from state witnesses goes unchallenged, and consequently this tool is ripe for abuse. In short, it allows prosecutors to craft the outcome that they want despite the evidence. This has long been a criticism of the Grand Jury system (see the arguments made in Johnston, 1974; they remain relevant to this day).

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Wilson, the first investigation determined that: “this matter lacks prosecutive merit and should be closed” (DOJ, 2015a). This put Officer Wilson in the clear with respect to criminal charges. However, the second investigation examined the broader issues of local law enforcement culture and leadership. The DOJ was blunt and specific about the institutional racism that their investigation revealed (DOJ, 2015b): The Justice Department found that the Ferguson Police Department (FPD) engaged in a pattern or practice of conduct that violates the First, Fourth, and 14th Amendments of the Constitution… “As detailed in our report, this investigation found a community that was deeply polarized, and where deep distrust and hostility often characterized interactions between police and area residents,” said Attorney General Eric Holder. “Our investigation showed that Ferguson police officers routinely violate the Fourth Amendment in stopping people without reasonable suspicion, arresting them without probable cause, and using unreasonable force against them… The department found that the FPD has a pattern or practice of: • Conducting stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; • Interfering with the right to free expression in violation of the First Amendment; and • Using unreasonable force in violation of the Fourth Amendment. The department found that Ferguson Municipal Court has a pattern or practice of: • Focusing on revenue over public safety, leading to court practices that violate the 14th Amendment’s due process and equal protection requirements. • Court practices exacerbating the harm of Ferguson’s unconstitutional police practices and imposing particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay and result in the loss of a driver’s license, employment, or housing. The department found a pattern or practice of racial bias in both the FPD and municipal court: • The harms of Ferguson’s police and court practices are borne disproportionately by African Americans and that this disproportionate impact is avoidable. • Ferguson’s harmful court and police practices are due, at least in part, to intentional discrimination, as demonstrated by direct evidence of racial bias and stereotyping about African Americans by certain Ferguson police and municipal court officials.

The inevitable result of this and similar incidents was the formation of what is now the Black Lives Matter (BLM) movement. They are an international crusade, originating from the African-American community in the United States. BLM

Racial Profiling as Racist, Unconstitutional, and Illegal

campaigns against systemic violence and institutional racism perpetrated against members of the black community (Miller, 2016).12 As one might expect, this has resulted in its own racial backlash from the law enforcement community, and from politicians looking to solidify their base (so-called Blue Lives Matter and related legislative initiatives; see DeBerry, 2017).13 Pro-racial profiling sentiment in the public culminated with the 2016 election of Donald J. Trump. He is openly supportive of racial profiling against Muslims and Mexicans, regardless of their legal status. To be clear, Mr. Trump ran for President of the United States, and won, on a platform that can only be described as openly racist.14 First, President Trump promised to strengthen US Border security by building a wall along the entire Mexican border, to keep illegal immigrants from entering (Diaz, 2017). Former Mexican President Vincent Fox has called this proposed wall “a monument to racism,” as have others (Bierman & Bennett, 2017).15 As of this writing, President Trump is drafting budget legislation to make this wall a reality.16 Then President Trump proposed to ban Muslims from entering the country, until such time as “extreme vetting” could be put in to effect through subsequent executive order (Dennis & Markon, 2017). He has further attempted to make good on this campaign rhetoric with two separate failed executive orders imposing travel bans against predominately Muslim countries. These executive orders have been referred to as both “racist” and “anti-Muslim” (Carney, 2017). This is a view that is shared by multiple federal courts, as thoughtfully explained in Toobin (2017): “Two federal judges just invalidated President Donald Trump’s executive order on immigration, and both for the same reasons. In highly similar opinions… federal district judges 12

See http://blacklivesmatter.com/about/. There can also be no question that the election of the first black President, Barack Obama, for two consecutive terms, also played a significant role in percolating what became the anti-BLM backlash. President Obama’s skin color, and the accusations of the so-called birther movement were constant lightning rods during the election campaign of President Trump (Barbaro, 2016). 14 As explained in Kristof (2016), Mr. Trump’s negative views towards minorities were not at all veiled during the presidential campaign: “Trump’s suggestions that President Obama was born in Kenya; his insinuations that Obama was admitted to Ivy League schools only because of affirmative action; his denunciations of Mexican immigrants as, ‘in many cases, criminals, drug dealers, rapists;’ his calls for a temporary ban on Muslims entering the United States; his dismissal of an American-born judge of Mexican ancestry as a Mexican who cannot fairly hear his case; his reluctance to distance himself from the Ku Klux Klan in a television interview; his retweet of a graphic suggesting that 81 percent of white murder victims are killed by blacks (the actual figure is about 15 percent); and so on. Trump has also retweeted messages from white supremacists or Nazi sympathizers, including two from an account called @WhiteGenocideTM with a photo of the American Nazi Party’s founder.” 15 As explained by the Editorial Board (2017) of The Chicago Tribune: “When Trump declared his candidacy in June 2015, he stated that one of the biggest dangers facing America was migrants from Mexico. (“They’re bringing drugs. They’re bringing crime. They’re rapists.”) That claim is demonstrably false: All evidence suggests that undocumented immigrants are less likely to commit crimes than the population at large. It also was a racist insult.” 16 President Trump has also repeatedly disparaged judges presiding over lawsuits against him as impartial, due solely to their Mexican heritage. In the recent past, Republican House Speaker Paul Ryan labeled Trump’s statements as “textbook racism” (Walsh and Raju, 2016). 13

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in Hawaii and Maryland used statements Donald Trump made as a candidate for President to conclude that his revised travel ban on people from six majority-Muslim nations represented unconstitutional religious discrimination.” President Trump has also proposed to bring back racial profiling, directed at Muslims and Mexicans. However, the practice has much broader implications. In September 2016, then candidate Trump proclaimed his support for racial profiling by police, as reported in Schleifer (2016): Our local police—they know who a lot of these people are. They are afraid to do anything about it because they don’t want to be accused of profiling,” Trump said on Fox News on Monday. Trump pointed to how Israel used profiling and “done an unbelievable job.

Only days after taking office, President Trump signed an executive order that can only be viewed as the beginning of efforts directed towards legitimatizing the practice of racial profiling nationwide (Zapotosky, 2017): President Trump on Wednesday directed his homeland security secretary to deputize local law enforcement officials to enforce immigration laws, a move that civil rights advocates fear could embolden police to racially profile those they encounter. The directive came as part of a sweeping executive order that cracks down on people in the country without documentation and the cities that don’t readily hand them over for deportation.

All of this context, which includes racist and discriminatory directives from then highest office in The United States, has combined to encourage and even legitimize racial profiling against black, muslim, and Mexican Americans, which continues at an alarming rate.

RACISM AND LAW ENFORCEMENT CULTURE The authors have experienced that law enforcement are trained to manage all encounters in terms of force and control; and to view interactions with citizens through the lens of criminality. In other words, they are trained to control every situation using some level of force; and to identify those that must be arrested. This is their paradigm: force and criminality. It is an indisputable fact that institutional racism, and racial profiling, is part of this paradigm within many law enforcement agencies. This is explained in Chan (2011): There is certainly a vast literature that supports the finding that street-level police officers often form stereotypical opinions about the criminality of certain ethnic groups and use such visual cues in routine, proactive policing work (see, e.g., Ericson 1982; Bayley and Mendelsohn 1969). These ways of seeing and acting are regarded as features of police (sub)culture that appear to be common across

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space and time. Satzewich and Shaffir (2009) provide evidence that police officers in their study (even officers from ethnic minorities) saw profiling as integral to police work and admitted that the racial appearance of the citizen was one factor among others that they took into account when deciding whether to intervene. The authors suggest that “the occupational culture enables the police to draw upon a vocabulary of explanations” that “permit[s] them to deny responsibility when faced with the allegation that their profiling is racially motivated” (Satzewich and Shaffir, 2009: 211).

This is also consistent with the results of multiple independent investigations into law enforcement agencies that have carried out over the past decade—in a variety of legal contexts. 1. Ferguson Police Department, Missouri: A DOJ investigation found evidence of widespread institutional racism—that “Ferguson’s largely white cops were deeply, systematically and violently prejudiced against black residents” (Calabresi, 2015). 2. Baltimore Police Department (BPD): In 2016, a DOJ investigation determined that “BPD engages in a pattern or practice of conduct that violates the Constitution or federal law. BPD engages in a pattern or practice of (1) making unconstitutional stops, searches, and arrests; (2) using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African-Americans; (3) using excessive force; and (4) retaliating against people engaging in constitutionally protected expression. This pattern or practice is driven by systemic deficiencies in BPD’s policies, training, supervision, and accountability structures that fail to equip officers with the tools they need to police effectively and within the bounds of the federal law” (DOJ, 2016). 3. Boston, Massachusetts: The Massachusetts Supreme Judicial Court overturned the conviction of man for having a weapon without a permit, based on the following: “A black man who runs from police shouldn’t necessarily be considered suspicious—and merely might be trying to avoid “the recurring indignity of being racially profiled.” In its ruling, the court cited Boston Police Department crime data “and a 2014 report by the ACLU of Massachusetts that found blacks were disproportionately stopped by the city’s police….” The court also cited “a factual irony” in how flight from police is viewed and said that in this instance, a Boston police officer decided to approach Warren and a companion despite important factors: The officer was looking for three, not two, suspects, and he had been given only vague descriptions that the suspects were wearing dark clothing and a hoodie” (Chappell, 2016). 4. Los Angeles Police Department (LAPD): “African Americans have significantly less trust in LAPD officers than other residents do. A new survey, commissioned by the department, found that less than half of black residents consider the police honest and trustworthy. Only a third believe officers treat

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people of all races or ethnicities fairly… Accusations of racial profiling— what the LAPD calls biased policing—are difficult to prove, as they hinge on what an officer is thinking when he or she stops someone. Los Angeles police usually receive a few hundred complaints of biased policing each year, largely from African Americans. None have been upheld, a number that has become more glaring in recent years as residents and police commissioners continue to voice their concerns” (Mather & Chang, 2016). To be clear, the failure to validate a single complaint, and to conclude that 100% were false reports, is not viable. This suggests that the LAPD is either falsifying the results of some investigations, or not investigating these complaints at all. 5. Chicago Police Department (CPD): In 2016, a task force appointed by the mayor found that “[r]acism has contributed to a long pattern of institutional failures by the Chicago Police Department in which officers have mistreated people, operated without sufficient oversight, and lost the trust of residents” (Davey & Smith, 2016). In 2017, a US DOJ investigation found that the CPD engages in a pattern of unconstitutional use of force; that a lack of accountability contributes to an overall pattern of unconstitutional conduct; and specifically, that “CPD has tolerated racially discriminatory conduct that not only undermines police legitimacy, but also contributes to the pattern of unreasonable force. The pattern or practice of unreasonable force, coupled with the recurrence of unaddressed racially discriminatory conduct by officers further erodes community trust and police effectiveness. Our review of complaints of racially discriminatory language found repeated instances where credible complaints were not adequately addressed. Moreover, we found that some Chicago police officers expressed discriminatory views and intolerance with regard to race, religion, gender, and national origin in public social media forums, and that CPD takes insufficient steps to prevent or appropriately respond to this animus…. We have serious concerns about the prevalence of racially discriminatory conduct by some CPD officers and the degree to which that conduct is tolerated and in some respects caused by deficiencies in CPD’s systems of training, supervision and accountability” (DOJ, 2017, p. 15). Other DOJ investigations and published research have also found racial bias and discrimination by law enforcement agencies in San Francisco (Peralta, 2016) and Oakland (Parker, 2016). It does not end here, however. As of this writing, dozens of major police agencies are currently under investigation for similar practices nationwide—either by the DOJ, the ACLU, locally formed task forces, or various government commissions. The results of these and many other related investigations tend to disprove assertions that institutional racism is not a feature of modern law enforcement. In addition, they provide a contextual explanation as to why racial profiling persists, despite a lack of demonstrable efficacy. This is not to say that all police officers are racist;

Racism and Law Enforcement Culture

rather that racism features prominently as part of the misconduct experienced within many police agencies.

RACIAL PROFILING AND MISCARRIAGES OF JUSTICE The criminal justice system in the United States rests on the principle that all suspects and defendants are innocent until proven guilty.17 This is referred to as the presumption of innocence, which requires the state to prove a defendant’s guilt beyond a reasonable doubt. As explained in Coffin v. United States (1895): “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” The right to a presumption of innocence was upheld in Taylor v. Kentucky (1968), which states “the trial court’s refusal to give petitioner’s requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.” The presumption of innocence is premised on the belief that it is worse to convict the innocent than to let the guilty go free (e.g., In re Winship, 1970). In other words, convicting the innocent is viewed by the law, and by society, as an unacceptable price to pay for justice. As explained in Schlup v. Delo (1995): “concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system.” In their contact with the criminal justice system and its various agents, criminal suspects and defendants can become victims of bias, corruption, ignorance, error, and even indifference. When this happens, due process falls apart, the presumption of innocence may be violated, and civil rights violations may be incurred. Such circumstances are referred to as miscarriages of justice. Miscarriages of justice come in a variety of forms. All of them relate to legal consequences, but they need not result in harm done by the court (which is only one branch of the criminal justice system). The most common miscarriages include: 1. Wrongful detention 2. False arrest 3. Failure to investigate and arrest 4. Failure to prosecute 5. Wrongful or malicious prosecution 6. Ineffective assistance of counsel 7. Wrongful acquittal 8. Wrongful conviction 9. Wrongful sentencing Racial profiling violates due process, the presumption of innocence, and the Constitutional Amendments that provide for them. It is consequently both unconstitu17

This section is adapted from Cooley and Turvey (2014).

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tional and illegal, as already discussed. Moreover, because it does not work, the only outcome of racial profiling can be a miscarriage of justice. Direct evidence of racial profiling and other forms of discrimination (especially if combined with an established pattern of discrimination by an individual officer, their supervisors, or their institution) are sufficient basis for a 1983 Civil Rights lawsuit. As explained in Feder (2012, p. 5): Direct evidence of discriminatory intent was sufficient to avoid summary judgment on a Section 1983 claim of selective enforcement in the Tenth Circuit decision, Marshall v. Columbia Lea Regional Hospital. There the claimant was able to present evidence of the officer’s behavior during the events in question as well as his alleged record of racially selective stops and arrests in drug cases under similar circumstances. Further evidence was offered that the claimant did not commit the alleged traffic violation and that the officer made eye contact with him prior to activating his emergency lights. As soon as the officer approached the claimant, he accused him of being on crack, an accusation the officer repeated several times during the encounter. When the officer filled out the citation form, he noted the claimant’s race, although the form called for no such designation. Most compellingly, it was shown that the officer had an extensive recorded history—or “modus operandi”—of similar misconduct during his prior employment as a police officer in another jurisdiction.

Again, given that racial profiling is evidence of both racism and racial discrimination, proof of its application or occurrence is a miscarriage of justice. There is no wiggle room here. Those in law enforcement who would use such tactics are in violation of The Constitution that they have sworn to uphold. Those who suffer because of them are entitled to have their cases dismissed, as well as to demand civil penalties against responsible individuals and government agencies in federal court per 42 U.S.C. Section 1983.

CONCLUSION Racial profiling, as already discussed, involves an inference or prediction regarding criminal propensity and suspect guilt based on visible traits (e.g., race, skin color, nationality, ethnicity, and manner of dress as predictors). It does not look for patterns based on multiple factors. It reinforces racism, prejudice, and related stereotypes based on cultural illiteracy. Racial profiling is inherently racist; unconstitutional; and illegal. This means racial profiling only serves as a mechanism for legitimizing or cloaking individual and/ or institutional prejudice. The inevitable result is a miscarriage of justice, culminating in civil liability in federal court. Evidence from multiple DOJ investigations into law enforcement agencies across the United States suggests that racial profiling features prominently in law enforcement practices. Furthermore, that these practices are often driven by widespread institutional racism, tolerated by the leadership. This provides an explanation for the persistence of racial profiling, despite the fact that it does not work.

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FURTHER READINGS Barbaro, M. (September 16, 2016). Donald Trump clung to ‘birther’ lie for years, and still isn’t apologetic. The New York Times. https://www.nytimes.com/2016/09/17/us/politics/ donald-trump-obama-birther.html. Black, H. C. (1990). Black’s law dictionary (6th ed.). St Paul, MN: West Publishing. Cooley, C., & Turvey, B. (2014). Miscarriages of justice. San Diego: Elsevier Science. Dilanian, K. (June 3, 2015). 6 Things to know about the newly approved USA Freedom Act. PBS. http://www.pbs.org/newshour/rundown/questions-answers-newly-approved-usafreedom-act/. Editorial Board. (January 26, 2017). Mr. President, don’t build that wall. The Chicago Tribune. http://www.chicagotribune.com/news/opinion/editorials/ct-trump-mexico-wall-immigration-edit-0127-jm-20170126-story.html. Johnston, R. (1974). The grand jury—Prosecutorial abuse of the indictment process. Journal of Criminal Law & Criminology, 65(2), 158–169. Kristof, N. (July 23, 2016). Is Donald Trump a racist? The New York Times. https://www.nytimes.com/2016/07/24/opinion/sunday/is-donald-trump-a-racist.html. Walsh, D., & Raju, M. (June 7, 2016). Paul Ryan rips Donald Trump remarks as ‘textbook definition of a racist comment. CNN http://www.cnn.com/2016/06/07/politics/paul-ryandonald-trump-racist-comment/.