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"A Case for Profiling"--A Commentary by Prof. Peter Schuck

(This essay originally appeared in the January issue of The American Lawyer, and an excerpt from it was published as an op-ed in the Los Angeles Times on January 27.)

A Case for Profiling--Here's a reason we use stereotypes. They work. The challenge is how to use them selectively and administer them wisely.

By Peter H. Schuck, the Simeon E. Baldwin Professor of Law at YLS

Racial profiling has become the hottest civil rights issue of the day, but it deserves cooler reflection than it has received. Politicians and pundits, regardless of their politics, reflexively denounce it; nary a word is raised in its defense. Many states have already barred it, and Congress is likely to do so. Some police chiefs resist Justice Department interrogation policies they think entail profiling. Yet September 11, as Dr. Johnson said of the gallows, concentrates the mind wonderfully. The disaster that befell us then and might recur in some form necessitates a profiling debate that is clear-eyed and hardheaded, not demagogic.

The furor about racial profiling is easy to understand. "Driving while black" and "flying while Arab" are emblems of the indignities that law enforcement officials are said to inflict on minorities on the basis of demeaning stereotypes and racial prejudice. This is no laughing matter. Respect for the rule of law means that people must not be singled out for enforcement scrutiny simply because of their race or ethnicity.

Or does it? Much turns on the meaning of "simply" in the last sentence. Profiling is not only inevitable but sensible public policy under certain conditions and with appropriate safeguards against abuse. After September 11, the stakes in deciding when and how profiling may be used and how to remedy abuses when they occur could not be higher.

A fruitful debate on profiling properly begins with our values as a society. The most important of these, of course, is self-defense, without which no other values can be realized. But we should be wary of claims that we must sacrifice our ideals in the name of national security; this means that other ideals remain central to the inquiry. The one most threatened by profiling is the principle that all individuals are equal before the law by reason of their membership in a political community committed to formal equality. In most but not all respects, we extend the same entitlement to aliens who are present in the polity legally or illegally. Differential treatment must meet a burden of justification in the case of racial classifications, a very high one.

This ideal has a corollary: Government may not treat individuals arbitrarily. To put this principle another way, it must base its action on information that is reliable enough to justify its exercise of power over free individuals. How good must the information be? The law's answer is that it depends. Criminal punishment requires proof beyond a reasonable doubt, while a tort judgment demands only the preponderance of the evidence. Health agencies can often act with little more than a rational suspicion that a substance might be dangerous. A consular official can deny a visa if in her "opinion" the applicant is likely to become a public charge and unlike the previous examples, courts may not review this decision. Information good enough for one kind of decision, then, is not nearly good enough for others. Context is everything.

This brings us to profiling by law enforcement officials. Consider the context in which an FBI agent must search for the September 11 terrorists, or a security officer at a railroad and airline terminal must screen for new ones. Vast numbers of individuals pass through the officer's line of vision, and they do so only fleetingly, for a few seconds at most. As a result, the official must make a decision about each of them within those few seconds, unless she is prepared to hold all of them up for the time it will take to interrogate each, one by one. She knows absolutely nothing about these individuals, other than the physical characteristics that she can immediately observe, and learning more about them through interrogation will take a lot of time. The time this would take is costly to her task; each question she stops to ask will either allow others to pass by unnoticed or prolong the wait of those in the already long, steadily lengthening line. The time is even more costly to those waiting in line; for them, more than for her, time is money and opportunity. Politicians know how their constituents hate lines and constantly press her along with customs, immigration, and toll officials to shorten them.

At the same time, her risks of being wrong are dramatically asymmetrical. If she stops everyone, she will cause all of the problems just described and all of the people (except one, perhaps) will turn out to be perfectly innocent. On the other hand, if she fails to stop the one person among them who is in fact a terrorist, she causes a social calamity of incalculable proportions. In choosing, as she must, between these competing risks, her self-interest and the social interest will drive her in the direction of avoiding calamity. The fact that society also tells her to be evenhanded only adds to her dilemma, while providing no useful guidance as to what to do, given these incentives.

So what should she do? We can get at this question by asking what we would do were we in her place. To answer this question, we need not engage in moral speculation but can look to our own daily experiences. Each day, we all face choices that are very similar in structure, albeit far less consequential. We must make decisions very rapidly about things that matter to us. We know that our information is inadequate to the choice, but we also know that we cannot in the time available get information that is sufficiently better to improve our decision significantly. We consider our risks of error, which are often asymmetrical. Because we must momentarily integrate all this uncertainty into a concrete choice, we resort to shortcuts to decisionmaking. (Psychologists call these "heuristics.")

The most important and universal of these tactical shortcuts is the stereotype. The advantage of stereotypes is that they economize on information, enabling us to choose quickly when our information is inadequate. This is a great, indeed indispensable virtue, precisely because this problem is ubiquitous in daily life so ubiquitous that we scarcely notice it; nor do we notice how often we use stereotypes to solve it. Indeed, we could not live without stereotypes. We use them in order to predict how others will behave as when we assume that blacks will vote Democratic (though many do not) and to anticipate others' desires, needs, or expectations, as when we offer help to disabled people (though some of them find this presumptuous). We use them when we take safety precautions when a large, unkempt, angry-looking man approaches us on a dark street (though he may simply be asking directions), and when we assume that higher-status schools are better (though they often prove to be unsuitable). Such assumptions are especially important in a mass society where people know less and less about one another.

Stereotypes, of course, have an obvious downside: They are sometimes wrong, almost by definition. After all, if they were wrong all the time, no rational person would use them, and if they were never wrong, they would be indisputable facts, not stereotypes. Stereotypes fall somewhere in between these extremes, but it is hard to know precisely where, because we seldom know precisely how accurate they are. Although all stereotypes are overbroad, most are probably correct much more often than they are wrong; that is why they are useful. But when a stereotype is wrong, those who are exceptions to it naturally feel that they have not been treated equally as individuals, and they are right. Their uniqueness is being overlooked so that others can use stereotypes for the much larger universe of cases where the stereotypes are true and valuable. In this way, the palpable claims of discrete individuals are sacrificed to a disembodied social interest. This sacrifice offends not just them but others among us who identify with their sense of injustice, and when their indignation is compounded by the discourtesy or bias of bag checkers or law enforcement agents, the wound is even more deeply felt.

This is where the law comes in. When we view these stereotype-based injustices as sufficiently grave, we prohibit them. Even then, however, we do so only in a qualified way that expresses our ambivalence. Civil rights law, for example, proscribes racial, gender, disability, and age stereotyping. At the same time, it allows government, employers, and others to adduce a public interest or business reason strong enough to justify using them. The law allows religious groups to hire only coreligionists. Officials drawing legislative districts may to some extent treat all members of a minority group as if they all had the same political interests. The military can bar women from certain combat roles. Employers can assume that women are usually less suitable for jobs requiring very heavy lifting. Such practices reflect stereotypes that are thought to be reasonable in general, though false as to particular individuals.

Can the same be said of racial or ethnic profiling? Again, context is everything. We would object to a public college that categorically admitted women rather than men on the theory that women tend to be better students not because the stereotype is false but because the school can readily ascertain academic promise on an individualized basis when reviewing applicants' files, which it must do anyway. On the other hand, no one would think it unjust for our officer to screen for Osama bin Laden, who is a very tall man with a beard and turban, by stopping all men meeting that general description. This is so not only because the stakes in apprehending him are immense but also because in making instantaneous decisions about whom to stop, the official can use gender, size, physiognomy, and dress as valuable clues. She would be irresponsible and incompetent not to do so even though every man she stopped was likely to be a false positive and thus to feel unjustly treated for having been singled out.

Racial profiling in more typical law enforcement settings can raise difficult moral questions. Suppose that society views drug dealing as a serious vice, and that a disproportionate number of drug dealers are black men although of course many are not. Would this stereotype justify stopping black men simply because of their color? Clearly not. The law properly requires more particularized evidence of wrongdoing. Suppose further, however, that police were to observe a black man engaging in the ostensibly furtive behavior that characterizes most but not all drug dealers behavior also engaged in by some innocent men. Here, the behavioral stereotype would legally justify stopping the man. But what if the officer relied on both stereotypes in some impossible-to-parse combination? What if the behavioral stereotype alone had produced a very close call, and the racial one pushed it over the line?

Although I cannot answer all these questions, most critics of racial profiling do not even ask them. A wise policy will insist that the justice of profiling depends on a number of variables. How serious is the crime risk? How do we feel about the relative costs of false positives and false negatives? How accurate is the stereotype? How practicable is it to pursue the facts through an individualized inquiry rather than through stereotypes? If stereotypes must be used, are there some that rely on less incendiary and objectionable factors?

A sensible profiling policy will also recognize that safeguards become more essential as the enforcement process progresses. Stereotypes that are reasonable at the stage of deciding whom to screen for questioning may be unacceptable at the later stages of arrest and prosecution, when official decisions should be based on more individualized information and when lawyers and other procedural safeguards can be made available. Screening officials can be taught about the many exceptions to even serviceable stereotypes, to recognize them when they appear, and to behave in ways that encourage those being screened not to take it personally.

It is now a clich?hat September 11 changed our world. Profiling is bound to be part of the new dispensation. Clearer thinking and greater sensitivity to its potential uses and abuses can help produce both a safer and a more just America.

Peter H. Schuck is the Simeon E. Baldwin Professor at Yale Law School and the author most recently of The Limits of Law: Essays on Democratic Governance (Westview, 2000).