Racial Profiling

Racial Profiling is a highly criticized, yet officially practiced crime-fighting

policy established by some states in the US such as Arizona, under the official name of
Show Me Your Papers and by the NYPD, called the Stop-and-Frisk policy. It works
the following way: the police department is instructed to be more suspicious of certain
minorities, such as Muslims, Latinos, and, more commonly, black people, based under
the slippery argument that these social groups are more akin to crime than other groups,
causing social stress, targeted police offensives and, if I may say, some very interesting
debates.
Now, as a 2nd grade student attending a Law School, I do believe that Racial
Profiling is unconstitutional, under both the Brazilian and the North-American federal
constitutions. I cant help but to compare both of them when it comes to this policy.
In the Brazilian case, all we have to do is reading the 5th article, section no. XLII:
the practice of racism is a non-bailable crime, with no limitation, subject to the penalty
of confinement, under the terms of the law, just for us to understand how racism is
treated here in legal terms. In a country where black/brown people constitute more than
50% of the entire population and the practice of racism is mostly rejected by both the
legal system and the civil society (specially because of the Brazilian colonial and

slavery past), Racial Profiling would certainly cause social turmoil, and would certainly
be subject of an ADI, some sort of Unconstitutionality Action that can be moved
directly into the Supreme Court by specific agents defined by Law.
In the north-american case, however, there is not a single article of the
Constitution that can be used clearly to ensure that Racial Profiling is illegal. However,
if we check the 4th Amendment, that reads 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 actually possible to consider Racial Profiling as a
unreasonable search, for instance. Unfortunately, the Supreme Court has already
declared that Racial Profiling is indeed Constitutional (U.S. v. Armstrong and Arizona
SB 1070), since it is practiced under certain circumstances.
This is a perfect example of how racism is still very lively in the USA, since it is
so clear to me that searching people based only on their color/race/ethnicity is a
ridiculous violation of ones rights. In addition, this policy can stimulate other nontargeted social groups to commit crimes, since they are not as likely to be stopped by
the police. It is possible that this creates incentives for others to engage into the criminal
life since it is known that they are less likely to be searched, which affects the isonomy
principle in my point of view.
Lets now assume that Racial Profiling does reduces crime rate. Would it still be
recommendable to adopt it? Well, in that case, we would have what economists call a
trade-off kind of dispute between crime rate and the amount of racism existent in a
given society. Racial Profiling always puts at least one certain group in a downgraded
position. People would associate targeted groups with crime and would certainly

segregate them in some manner. Even so, crime rates would fall and people would be
safer, which is a strong argument favorable to Racial Profiling (no wonder why they still
do it). Nevertheless, the social costs of triggering such policy would be very high
indeed. Those targeted groups would be marked as a potential nest of felony, causing
society to split up in different racial and ethnical groups, something that is highly
undesirable under my point of view of democracy.
Bringing this subject to the real world, Racial Profiling is somewhat little
effective and is related to several police brutality cases. I started looking up some data
related to this policy, and what I feared was indeed true: crime reduction is minimal, and
police brutality, instigated. NYPD stops-and-frisks as often as 2000 times a day, and
only about 6% (nearly 120 people) of the stopped suspects end up arrested. NYCs
mayor says that critics think that the NYPD should run under standards of political
correctness rather than public safety. I do believe that fighting crime is desirable, but the
due process of law must be respected at all costs, mainly because it is, as Montesquieu
had defined in his magnum opus The Spirit of the Laws, one of the institutes needed
for people to have freedom. It is also a way to prevent tyranny. The public safety
argument casts aside all the innocent people the police stops every day, ignoring the
risks they get submitted to when stopped-and-frisked by police officers. Racial Profiling
in not the cause of police brutality, but the latter undeniably exists, and it is not a good
idea to increase the number of people police searches every day. We must understand
that, as much as one trusts the police, it hardly is a danger-free situation to be
approached by a police officer.
Despite of all the negative aspects of Racial Profiling, I do believe that such
practice is somehow thought to be necessary in a place like the USA. It seems that this
policy is a means they found to protect themselves from the possibility of future

terrorist attacks, being also a product of a generalized fear. After the 9/11, everything
changed forever in that country. The USA had never been attacked continentally before,
and when it happened, terrorists succeeded in causing one of the most successful results
they could get: a frightened, paranoid nation, whose enemy could be everywhere.
Politicians used it as a way to promote themselves in a supposed war against terror,
sending thousands of troops to die in a senseless hunt that included the downfall of a
dictator, a so-called search for WMDs and the disrupting of a very delicate balance of
power. The effects of that war can still be felt to this day, and the number of enemies the
USA has made is more likely to be increasing every year.
It is reasonable to conclude that, when the NYPD stops-and-frisks a man that
looks a lot like the ones North-American troops kill (and are killed by) in the Middle
East, it doesnt look exactly like the classic prejudice we use to see in old footages of
the 1960s Civil Rights Movement, in which colored people are hit and soaked by
pressurized streams of water or in the justification of the Dred Scott v. Sandford case in
1857, even though I still consider such policy an example of racism. It seems to me that
Racial Profiling is not only about trying to diminish common crime; it is also a tool for
preventing terrorism, or at least a way to show people that the police department is
constantly monitoring the streets searching for it and going after the individuals that
have a terrorist profile. That is, to me, an attempt to gain public opinion1.
This underlying objective is easier to notice when we turn our attention to what
happens in North-American airports. Is Random Screening that random? The answer to
that question is surrounded by nebulosity. How does one proves that being selected 9
1 Recent surveys indicate that 66% of whites and 71% of African-Americans support the
ethnic profiling of people who look to be of middle-eastern descent. Chief Deputy Attorney
General for the State of California Peter Siggins presented this talk for a Markkula Center for
Applied Ethics forum March 12, 2002, co-sponsored by the SCU School of Law.
http://www.scu.edu/ethics/publications/ethicalperspectives/profiling.html

times for a Secondary Screening Security Selection is not random? It is relatively easy
for the TSA to get away with it, even because it is possible for this to happen. The thing
is, people dont believe that sort of excuse. There are several stories of individuals who
had Islamic traits and were constantly stopped by, while normal passengers didnt get
any screening. It isnt ludicrous to believe that such procedure is not random.
Therefore, Racial Profiling is and always will be a very controversial way of
fighting crime. It is racist and unconstitutional under my point of view, and it would
never work in a country like Brazil for instance. In the American case, it is imposed in
some states as a way of fighting crime rate and, in a more subjective way, terrorism.
Such policy segregates some minorities causing them to suffer a serious stigmatization
from other social groups, increasing prejudice in a given society. However, the
establishment of Racial Profiling is not purely racist, because it can be seen as a
political response to the terrorist threat imposed after the 9/11 events, which can
minimally justify a policy that was possibly motivated by fear (Racial Profiling already
existed before 9/11, but it gained more support after it). Such fact, though, does not
excludes its racist feature. Racial Profiling will still generate a lot of discussion, leading
us to believe that such matter is and probably will remain unresolved for a long time.

Jos Eduardo Rangel Cury

FGV DIREITO RIO-2nd Grade

References:
http://www.huffingtonpost.com/brian-stone/why-racial-profiling-ata_b_6281010.html
https://en.wikipedia.org/wiki/Due_process

https://www.tsa.gov/travel/security-screening
http://www.scu.edu/ethics/publications/ethicalperspectives/profiling.html
https://en.wikipedia.org/wiki/Secondary_Security_Screening_Selection#Selectio
n_criteria
http://thehill.com/policy/transportation/239417-tsa-orders-more-airportemployee-screening
http://www.civilrights.org/publications/wrong-then/racial_profiling_report.pdf
https://www.youtube.com/watch?v=8jqXeW5C324 - NYPD's Stop-and-Frisk: Racial
Profiling or 'Proactive Policing'?