PROFILES, PROBABILITIES, AND STEREOTYPES

Vol. 14 No. 2 (February 2004)

PROFILES, PROBABILITIES, AND STEREOTYPES by Frederick Schauer. Cambridge, Mass.: Belknap Press of Harvard University Press, 2003. 359 pp. Cloth $29.95 / Ł19.95 / E27.70. ISBN: 0-674-01186-4.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University. Smithc28@msu.edu

The press release issued by Harvard University Press to promote Frederick Schauer's PROFILES, PROBABILITIES, AND STEREOTYPES begins with the headline "Is Profiling Ever Appropriate?" [boldface in original]. Moreover, the cover of the book shows a photograph of a military police officer conducting a search of an individual who may (it is not entirely clear in the black and white photograph) have dark hair and a dark complexion. Clearly, the publisher believes that it can gain attention for this book by explicitly linking it to the controversies concerning law enforcement officers' use of physical characteristics, especially race, to determine whom to stop, question, and search. Indeed, the term "profiling" itself may have taken on a pejorative connotation in light of highly-publicized revelations about race-based targeting of drivers by police in New Jersey, Maryland, and elsewhere. A few years ago, when students talked to me about seeking a criminal justice career in "profiling," they were speaking of investigating serial murderers or rapists. Now, I seldom hear the term used by students unless it has the word "racial" in front of it and the topic arises most frequently in my classes when African-American students complain with understandable anger about being stopped by police officers without any apparent justification. The linkage of race with the concept of profiling creates a prickly, discomfort-inducing subject that leads most commentators to, quite understandably, approach it by condemning the discriminatory aspects of officials' behavior that single out particular demographic groups for adverse attention and treatment. Indeed, in the interest of full disclosure, I have discussed the subject solely from that perspective in my own published work.

By contrast, Frederick Schauer, the Stanton Professor of the First Amendment at Harvard's Kennedy School of Government, thoughtfully and courageously attempts to discuss profiling without producing a blanket condemnation based on a narrowly focused discussion of police officers and their use of race in discretionary decision making. This is not to say that Schauer avoids the subject of police discretion; indeed, he issues a critique of officers' actions that are based on empirically unsupportable assumptions concerning race. However, Schauer places profiling into the broader context of generalizations in the law. As a result, it would be more accurate to describe Schauer's book as focusing on problems raised by generalizations.

Within this broader topic, the profiling of people suspected of criminal (or "terrorist") behavior constitutes a particularly important and controversial aspect of the application of generalizations. Schauer's thesis is that generalizations can be necessary and useful for society. In making the case for his argument, he explicitly recognizes that "because I defend the morality of decisions by categories and generalizations, I look more sympathetically than is fashionable nowadays at profiles and stereotypes, which are little more than generalizations in street clothes" (p.ix). Lest any potential reader misperceive Schauer's statement as a precursor to a defense of "racial profiling" in the pejorative sense of that term, it should be made clear at the outset that this is not the case. Schauer justifies various forms of generalizations, including those that underlie airport searches and other contexts, but he does not provide general support for all forms of profiling as currently practiced. He is concerned with empirically-based justifications for generalizations, as well as the importance of the underlying governmental interests and the seriousness of the consequences for the affected individuals and society.

In several chapters, the book includes discussions related to "conundrums surrounding the use of probabilities and statistics in the law of evidence" (p.241). These discussions include asserted inferences about the identification of tort-feasors in civil litigation and the courts' reluctance to rely on probabilities to assign liability without specific proof of responsibility for harm. Elsewhere, the discussion concerns generalizations involved in presumptive criminal offenses, such as narcotics crimes that presume that possession of a specific amount of drugs indicates an intention to engage in drug trafficking. These discussions present the reader with puzzles and contradictions that often underlie legal rules. Schauer uses these discussions to illuminate facets of legal generalizations that are generally accepted, although not universally recognized for their connection to the issue of broad-brush treatment of similarly situated individuals.

One of the strengths of the book is Schauer's lively discussion of specific controversies concerning the use of generalizations in law. In one chapter, he analyzes the controversy over municipal ordinances and other laws (and proposed laws) that sought to address the perception of pit bulls as especially dangerous dogs. Such laws apply generalized restrictions to a specific breed of dog without regard to differences in the characteristics and behavior of individual animals. In another chapter, he explores age limits for commercial airline pilots and age requirements for voting. In yet another chapter, the book discusses the justifications and impact of sentencing guidelines, a subject of contemporary controversy as generalized applications of law have curtailed judges' discretionary authority. A particularly useful chapter examines the arguments made on behalf of the Virginia Military Institute to justify its (now defunct) policy of excluding women. The arguments were based, in part, on empirically-based generalizations about differences in the physical strength of men and women. Yet Schauer offers a thorough and thoughtful dissection of such arguments to demonstrate why such gender-based generalizations-unlike some other kinds of generalizations-cannot withstand scrutiny as a justification for discrimination. Schauer's ability to use these examples will make this volume accessible to interested readers outside of academia. More importantly, these examples also help Schauer pursue his theme about the contributions of generalizations to societal interests in both "community" and "equality."

As indicated by the foregoing discussion, Schauer's book is about generalizations in the law rather than about profiling per se. However, the public controversy surrounding racial profiling by law enforcement officers necessarily makes the use of profiles by government officials an especially important topic in the book. Schauer wisely examines several contexts of profiling including the Internal Revenue Service's Discriminant Function analysis criteria to trigger audits of individual taxpayers and the Computer-Assisted Passenger Pre-Screening System (CAPPS) for deciding which airline passengers' luggage to search. In these discussions, he cites Justice Thurgood Marshall's dissent in UNITED STATES v. SOKOLOW (1989) as going "right to the heart of the matter [of profiling]" (p.173). In SOKOLOW, concerning the selection of an airline passenger manifesting certain behaviors and characteristics for detention and search, Marshall complained: "In my view, a law enforcement officer's mechanistic application of a formula of personal and behavioral traits in deciding whom to question in detail can only dull the officer's ability and determination to make sensitive and fact-specific inferences in light of his experience" (p.172). Marshall's view embodies a popular and appealing conception of justice in which each individual is judged solely according to his or her own specific behavior. However, Schauer demonstrates how Marshall's view can pose problems for the very goals of equal justice and fairness that the late Associate Justice sought to advance.

To deconstruct Marshall's argument, Schauer effectively uses an especially egregious example of racial discrimination in the grossly disproportionate number of humiliating body searches applied during the 1990s to African-American women returning from abroad at international airports in the United States. A General Accounting Office study (2000) revealed that African-American women were searched more frequently than other demographic groups despite the fact that they were less likely to be carrying contraband than were white women, white men, and African-American men. As revealed by Schauer, the discriminatory treatment did not result from the Customs officers' use of a mechanistic profile. Instead, the egregious mistreatment occurred because the officers deviated from the Customs-developed profile criteria, which did not include race or gender, in order to infuse their own prejudicial assumptions into their discretionary decisions about which passengers to select for searches. Schauer argues that this illustrates that there are fundamental problems concerning race - and other sources of bias - but it does not demonstrate that there is a problem with profiling, a practice which he sees as inevitable and, if empirically supported, desirable for some societal objectives. Schauer summarizes the underlying issue concerning racial profiling as relating to how we profile, not whether profiling will occur: "Once we understand the choice as being one between profiles that are constructed in advance and have the potential to be both under- and overinclusive, on the one hand, and profiles that are constructed on a case-by-case basis by law enforcement officials . . ., on the other, we can see that the issue is not about profiling at all, for profiling is inevitable. Rather, the debate that masquerades as a debate about profiling is a debate about rules, and is a debate, therefore, that is centrally about the circumstances under which we will and will not rely on the unconstrained discretion of enforcement officials" (pp.173-174).

In the post-September 11th era in which we live, there may be broad acceptance of the desirability of using profiles-demographic, behavioral, and other criteria-for purposes of airport and border security. The existence of such profiling activity by airport security officials, Customs agents, and others reinforces Schauer's point about the inevitability of this approach to investigations. For those of us who are uncomfortable about the "overinclusiveness" of profile-based investigatory activity in these and other contexts as well as the human consequences of such governmental intrusions into liberty and privacy, Schauer's book does not provide reassurance or solutions. Instead, Schauer does a masterful job of dissecting the underlying issues affecting profiling and other forms of legal generalizations so that readers can gain greater comprehension of the complexities and tensions that shape our approaches to and reactions against across-the-board treatment of people within socially-defined categories. By placing these issues within the context of society's pursuit of the desirable goals of "community" and "equality," Schauer presents even the most stalwart critics of generalized treatment with an informative and thought-provoking challenge. Thus this book performs an especially valuable service for scholars of law, as well as, hopefully, a broader audience in American society.

REFERENCES:

United States General Accounting Office, Pub. No. GAO/GGD-00-38. 2000. UNITED STATES CUSTOMS SERVICE: BETTER TARGETING OF AIRLINE PASSENGERS FOR PERSONAL SEARCHES COULD PRODUCE BETTER RESULTS. Washington, D.C.: Government Printing Office.

CASE REFERENCES:

UNITED STATES v. SOKOLOW, 490 US 1 (1989).

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