Good Cop, Bad Cop: Racial Profiling and Competing Views of Justice.

Vol. 14 No. 9 (September 2004), pp.739-741

GOOD COP, BAD COP: RACIAL PROFILING AND COMPETING VIEWS OF JUSTICE, by Milton Heumann and Lance Cassak. New York: Peter Lang, 2003. 246pp. Paper $22.95 / £15.00. ISBN: 0-8204-5829-5.

Reviewed by David O. Friedrichs, Department of Sociology/Criminal Justice, University of Scranton. Email: friedrichsd1@scranton.edu.

Some relatively narrow law-related policies capture the public imagination, and bring into sharp relief a broader range of law-related issues. In recent years “racial profiling” certainly fits into this category.

The book under review is an exceptionally well-written and well-organized – and timely – discussion of the issues surrounding racial profiling. One of the authors, Milton Heumann, is Chair of the Department of Political Science at Rutgers University, and the co-author of books on plea bargaining and hate speech. The other author, Lance Cassak, is a lawyer with the Office of Thrift Supervision of the U. S. Department of Treasury, and the author of various law review articles. Despite their different backgrounds, the authors have accomplished a smooth and effective collaboration. Their book is utterly devoid of the pretentious, jargon-ridden language that mars some academic explorations of legal policy issues. It has much to offer specialists on criminal justice policy but is broadly accessible to a wider audience. Indeed, any interested lay person should be able to follow the arguments the authors advance in this book. Perhaps some academic readers will be disappointed by the absence of a sophisticated, overarching theoretical framework, but I do not share any such concern in this case. The book is also exceptionally even-handed in its treatment of culturally and politically sensitive issues. It is devoid of the inflammatory language and polemical style of some other discussions of racial profiling. If any general criticism is warranted, it pertains to a certain amount of repetition of the key themes. But this book is an admirable and useful contribution to the literature on an issue of some significance.

GOOD COP, BAD COP opens with an exploration of the origins and evolution of racial profiling within law enforcement, and the surfacing of the racial profiling controversy. The state of New Jersey, where state police over a period of years implemented an especially blatant form of racial profiling on the turnpike, in the claimed interest of identifying and arresting “drug mules,” was at the center of this controversy. The specific role of the courts on this issue, and the case law that resulted, is also reviewed here. The authors argue that the United States Supreme Court went to some lengths to avoid addressing the racial dimension of the broader issue of the use of profiles by criminal justice agencies. In the celebrated TERRY v. OHIO decision the Court did not address the defendants’ race, and the Court continued to avoid this issue in subsequent cases. Although the authors suggest that some possible justifications [*740] for such avoidance could be offered, it remains significant and curious.

The racial profiling controversy emerged out of the earlier adoption of profiling generally as a legitimate law enforcement tool. As Frederick Schauer argues in PROFILES, PROBABILITIES AND STEREOTYPES, profiling properly used is both inevitable and desirable in law enforcement. The practice of applying a drug courier profile to those disembarking from airports (at least some airports) was eventually carried over to state police practices applied to those traveling on state highways. The racial and ethnic component was only one element of the original profiles and did not initially get significant attention from either the media or the courts. The racial dimension became more conspicuous with the application of profiles to highway stops, with disproportionate stopping of racial minorities. By 1998, following a highly publicized shooting of several African American youths who were pulled over on the New Jersey Turnpike, and well-publicized stops of some African American celebrities and sports figures, the media coverage of racial profiling became quite intense. The issue increasingly came to be seen in terms of discrimination, as opposed to profiling. Some police officials claimed that race was a correlate of other significant suspect factors and appropriately used in this context. But anecdotal evidence supported the claim that at least some of those pulled over were subjected to especially humiliating and even outrageous treatment, and such incidents reinforced the suspicion of critics that it was principally a contemporary manifestation of the long-standing pattern of racist law enforcement in American history. In response to claims that minorities are disproportionately involved in illicit drug trafficking, Heumann and Cassak suggest that a self-fulfilling prophecy may be operating—i.e., since minorities are stopped more often, they are more often found to be carrying illicit drugs. Since most minority members who are stopped are not carrying illicit drugs, they are highly likely to resent being stopped and questioned. This practice in turn promotes contempt for or suspicion of police officers, and accordingly can undermine law enforcement efforts to a significant degree.

Although a fairly broad consensus had emerged by 1998 that the specific way in which race was highlighted in profiling by New Jersey state troopers and some other law enforcement personnel was inappropriate, 9/11 led to a re-evaluation of racial profiling as a means of combating crime, and terrorism. Indeed, many people who have passed through American airports since the intensified post-9/11 screening procedures were put into place have complained about the seemingly absurd application of rigorous searching applied to young children, elderly couples, and other highly improbable threats to airplane security. Many commentators believe that more focused screening, especially targeting individuals corresponding to the ethnic profile of known terrorists (e.g., young men of Arab extraction) is warranted. The authors of GOOD COP, BAD COP mention, in this context, a “fascinating” “60 Minutes” interview shortly after 9/11 that also made a memorable impression on this reviewer at that time. Norman Mineta, Secretary of Transportation, asserted in a strongly emotional tone that racial and ethnic [*741] profiling would not be adopted at the airports under his department’s jurisdiction. Mineta, as a Japanese American, was shipped off to an internment camp as a young child, in the wake of the bombing of Pearl Harbor. Is it possible, then, that a highly consequential – but in the view of some, highly inefficient – screening policy has been adopted due to the unfortunate personal experience of an influential policy-maker?

This book, and the “racial profiling” controversy itself, bring into especially sharp relief a number of enduring issues. First, it offers one take on the relationship between formal legal principles and actual legal practices, insofar as the application of racial profiling can conflict with the goal of a color-blind law. In a related vein, abuse of discretionary decision-making by the police in this context can have especially harmful consequences. The on-going tension between a policing objective of achieving efficiency and the commitment in a democratic justice system toward fairness arises here as well. A failure to incorporate race or ethnicity into investigative profiling can produce less effective law enforcement in some circumstances. On the other hand, the broad application of racial profiling inevitably imposes pain, humiliation and inconvenience on large numbers of innocent people. The element of race has been implicated in a broad range of injustices in the course of our legal history, and the racial profiling issue is yet another potent reminder of its on-going significance.

The racial profiling issue, as addressed in this book, forcefully demonstrates the importance of political context in the resolution of criminal justice issues. The movement in many states, since 1998, toward legislation prohibiting racial profiling was driven mainly by factors in the political environment, according to the authors. Legislators did not examine the issues pertaining to the definition of profiling itself, existing case law, or the specific experiences of law enforcement officers, when they adopted such legislation. Truly reliable data on the practice of racial profiling have not yet been produced. David A. Harris’s fine book, PROFILES IN INJUSTICE, was subtitled “Why Racial Profiling Cannot Work.” But his book was written shortly before 9/11. As the authors of the present work point out, the terrorist threat has especially dramatic consequences, relative to illicit drug trafficking. The costs of racial profiling, as this book note, are very substantial. But the challenge of balancing public safety with individual liberty remains, and the nature of profiling practices of law enforcement offices will evolve. GOOD COP, BAD COP offers an excellent survey of the important issues involved in this matter.

REFERENCES:

Harris, David A. 2002. PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK. New York: The New Press.

Schauer, Frererick. 2003. PROFILES, PROBABILITIES, AND STEREOTYPES. Cambridge, Mass.: Belknap Press of Harvard University Press.

CASE REFERENCE:

TERRY v. OHIO, 392 US 1 (1968).

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