Racial Profiling, Exclusion & The Tragic Shooting of Michael Brown
Unalloyed racial profiling and The Future of Police-Black Citizens Encounters
By Professor Kasper Lippert-Rasmussen (Aarhus University)
March 17, 2015 Picture: j-No/Flickr.
This article is part of the Critique’s exclusive Black Lives Matter: The Problem of Race and Police Ethics. It was published before the Ferguson Grand Jury and Department of Justice reports were released.
I. The Shooting
August 9, 12:01, 28-year-old, armed European-American police officer Darren Wilson confronted 18-year-old, unarmed, African-American Michael Brown in Ferguson, Missouri. Brown was walking down the middle of the road stopping traffic. Three minutes later Brown was dead, apparently shot six times. The day after the event, St Louis County Police Chief Jon Belmar said: “Mr Brown or his friend Mr Johnson had pushed Officer Wilson back into his car as he was trying to get out, and proceeded to physically assault the officer. At some point, they struggled over Mr Wilson’s weapon. A shot was fired in the car, at which point the officer got out of the vehicle, and shot Mr Brown”. An eyewitness, Tiffany Mitchell, reported: “Mr Brown briefly struggled with Mr Wilson, while he was still seated in the police car. During the struggle, Ms Mitchell says that the officer shot his gun through the window. Following the first gunshot, Mr Brown ran down the street, and the officer got out of his vehicle and shot again (…) Michael jerks his body as if he’s hit and he turns around and faces the officer with his hands up” she said. “And the officer continues to shoot him until he goes down to the ground” . While these two accounts overlap at some points and, strictly speaking, might be compatible, they also differ crucially in what they suggest. The former hints at self-defence, while the latter sounds more like an execution of a teenager who no longer poses any threat and, indeed, might be surrendering himself.
Whatever the facts of the matter are regarding the shooting we know some of the upshots. Many—especially many African-Americans—see this as yet another symptom of racial profiling targeting them. Protests and unrest erupted and were met with additional police force employing military-style tactics and the National Guard[Read Brownlee & Parr on civil disobedience and Kleinig on Police Militarization]. The police added to the anger and feeling of alienation in the African-American community, when it released CCTW pictures of Mr. Brown apparently robbing a convenience store shortly before the shooting despite conceding that Officer Wilson was unaware of the incidence the moment he challenged Mr. Brown and, thus, that the pictures could not shed any light on what happened in those fatal moments on August 9 [Read Scarre on the rights of the deceased Michael Brown].
 Racial profiling as we know and racial profiling as it could be
At this point, it would be irresponsible for an outside observer to make guesses about what went on or what went through Officer Wilson’s head when he fired his gun six times at Mr. Brown. White or, for that matter, black police officers sometimes shoot white citizens who, like Mr. Brown at the time he was shot, poses no threat. For all we know it could be that race had nothing to do with the event. Obviously, few perceive of it in this way, and we can certainly appreciate the statistics and some of the controversial and apparently similar cases of the police shooting unarmed African-Americans, which are all in the background of this perception.
If the events leading to the shooting of Mr. Brown are, as Ms. Mitchell reports they are, the case raises no interesting ethical issues. The use of lethal force against Mr. Brown was then clearly disproportionate, unnecessary, and morally wrong. In this way, the shooting is irrelevant to the immorality of racial profiling. Still, because many see the case as yet another instance of objectionable racial profiling, it is relevant to raise the question: can racial profiling ever be justified? In what follows, I want to show that racial profiling is very hard to justify, even if we make the most favourable assumptions possible regarding how it is practiced and what it achieves.
As a starting point we can note that friends of racial profiling might—reasonably so, from the point of view of applied ethics—distinguish between racial profiling ‘as we know it’ and what some have called ‘unalloyed’ racial profiling .
Racial profiling as we know it involves all sort of distortions, inefficiencies and abuses. Police do not just happen to be more likely to stop black motorists, they also often verbally abuse them or search them in humiliating ways even though they have come across signs that, were the motorist European-American, would have led them to conclude that the person was innocent of any criminal offense. Similarly, because of racial profiles, the police might be disproportionately more inclined to see African-American males as posing a threat, regardless of other indicators of (or lack of) dangerousness—something which, of course, is what some suspect was the case in the shooting on Mr. Brown [See Blum on how racial stereotypes about black men may be a factor in the recent deaths of African American males]. Finally, there might be a certain psychological tendency for overreliance on racial profiles such that police officers that have “a profile that includes race” become insensitive to the presence or absence of other statistically relevant indicators of criminal conduct .
“If the events leading to the shooting of Mr. Brown are, as Ms. Mitchell reports they are, the case raises no interesting ethical issues. The use of lethal force against Mr. Brown was then clearly disproportionate, unnecessary, and morally wrong. In this way, the shooting is irrelevant to the immorality of racial profiling”
Unalloyed racial profiling on the other hand, involves no such abuses, inefficiencies and biases. It simply involves a rational setting of priorities in the light of statistical evidence regarding crime rates across racial groups. Because crime rates differ across racial groups in the US—not uniformly so, but such that in some, but not all, categories of crime African-Americans are overrepresented relative to their proportion of the US population—and because race in most cases is easily identifiable, police-related aims—preventing crime and arresting perpetrators of crime—might be better achieved by using more resources on racial groups with a higher crime rate.
Friends of unalloyed racial profiling will distance themselves from the abuses and other negative effects involved in racial profiling, as we know it, saying that these are wrong, but primarily for reasons independent of their association with racial profiling. They will still insist that unalloyed racial profiling might still be justified, pointing to the fact that many other kinds of group profiling are normally thought to be morally unproblematic. For instance, few think it is morally wrong for the police to be more inclined to suspect that, other things being equal, a young male will be more likely to engage in violent behaviour or sexual assault than an old lady. Part of the reason is, of course, that we think that such age and gender profiling is efficient—it prevents more violent crime and sexual assaults than if the police did not discriminate between old ladies and young males. An additional reason is that such increased attention by the police is not normally experienced as stigmatizing of young males—rightly so or not.
Unalloyed racial profiling is different from racial profiling, as we know it, so in one way discussing the former will not cast light directly on the latter. Indeed, some might see doing so as a disreputable way of distracting attention from the very objectionable features of racial profiling, as we know it. Moreover, the notion of unalloyed racial profiling will certainly not shed any light on the shooting of Mr. Brown, since even if such racial profiling is justified, this will change nothing regarding the wrongness of using deadly force against someone who, if Ms. Mitchell’s testimony is correct, was non-threatening, possibly giving himself up having already been hit by one bullet fired by Officer Wilson. Even so, it might be interesting to discuss the morality of unalloyed racial profiling in the present situation, because if unalloyed racial profiling is morally unjustified, then, given the undeniable fact that racial profiling involving biases, inefficiencies and abuses are harder to justify than unalloyed racial profiling, racial profiling, as we know it, is surely morally unjustified in most cases. And since the shooting of Mr. Brown, justifiably or not, has brought attention to the issue of racial profiling, we should discuss it anyway.
“Few think it is morally wrong for the police to be more inclined to suspect that a young male will be more likely to engage in violent behaviour or sexual assault than an old lady. Part of the reason is, of course, that we think that such age and gender profiling is efficient. An additional reason is that such increased attention by the police is not normally experienced as stigmatizing of young males—rightly so or not”
 Crime rates, crime elasticity, and stigma
In discussions of racial profiling it is often assumed that if a certain racial group has a higher crime rate than another, then that is a reason for profiling the group with the higher crime rate. As already indicated, in a US context, this means that, for a range of crimes, many think that there is a reason for profiling African-Americans. However, at best this assumption is too facile. This so, whether we take a retributivist view or a crime prevention view on the purpose of racial profiling.
If the purpose of racial profiling—and law enforcement in general—is to catch and punish people for criminal offenses that they have committed, as retributivists would have it, then, presumably, we should focus on those racial groups, where for an extra unit of police resources, the police will catch most criminals deserving punishment. However, since detection rates can vary across racial groups independently of crime rates, it could be that the police will catch more criminals if it spends more resources on racial groups that commit less crime than other groups, provided it is easier to identify and arrest offenders from this group than offenders from other groups.
Similarly, and perhaps more to the present point, if we take a preventive view on racial profiling such that the purpose of racial profiling is to prevent future crime, we should focus on those racial groups where for an extra unit of police resources we will prevent most future cases of crime. If members of a certain racial group will not, say, commit much fewer robberies, even if the danger of being apprehended for members of this racial group committing robbery increases significantly as a result of their being racially profiled, the relevant preventive purposes might be served better if the police focuses on racial groups that commit fewer robberies, but, say, are more sensitive to detection rates, because their members have more to lose from imprisonment, e.g. in terms of lost future job opportunities etc.
In sum, the common assumption that whenever racial profiling is justified, it is justified in virtue of the statistical fact that the incidence of a certain kind of crime is higher within that racial group than in other racial groups is a false, facile assumption that are often in the background of quick inference from crime statistics. What really matters are more complex issues of likelihood of apprehension and crime elasticity that cannot simply be inferred from the kind of crime statistics that are typically cited in public debates on racial profiling.
“The common assumption that whenever racial profiling is justified, it is justified in virtue of the statistical fact that the incidence of a certain kind of crime is higher within that racial group than in other racial groups is a false, facile assumption that are often in the background of quick inference from crime statistics”
In response, it might be conceded that while these considerations point to a common mistaken assumption about the justification of racial profiling, they simply show that the police should profile differently, e.g. profile those racial groups whose crime rates are most sensitive to police attention. However, there is another reason why unalloyed racial profiling is difficult to justify, which is immune to this response. Crime prevention and crime detection are not the only considerations to take into account. One other consideration is that even unalloyed racial profiling—to repeat, racial profiling involving no biases, abuses, and that is efficient from the point of view of police-related aims—is likely to stigmatize those subjected to it and alienate them from the wider society. The purpose of the police is to “serve and protect”. However, if citizens note that some racial groups are much more often stopped and searched than others—indeed, in some cases constantly stopped and searched—it will be difficult not to see this as a sign that these people are dangerous and seen as such by the police. Obviously, this will affect all members of this racial group, including the great majority of its law-abiding citizens. Such stigmatization involves symbolic harm, i.e. the harm of one’s racial identity being officially associated with crime . One might think that such symbolic harms are small and that, at any rate, the additional symbolic harm generated by racial profiling by the police is small given that members of this group are already stigmatized in many other ways, e.g. by their being overrepresented in queues at social service centers, in prisons, among the jobless, in run-down parts of cities. Still, if the strong reactions by members of the African-American community to real or perceived instances of racial profiling is anything to go by, its members think this is to belittle the symbolic harm involved in racial profiling by law enforcement agencies. Obviously, this harm, as well as the damage to social cohesion of the US society that it causes, will have to be weighed against whatever benefits in terms of less crime or higher rates of apprehension unalloyed racial profiling might bring.
“If citizens note that some racial groups are much more often stopped and searched than others, it will be difficult not to see this as a sign that these people are dangerous and seen as such by the police. Obviously, this will affect all members of this racial group, including the great majority of its law-abiding citizens”
 The causes of racial discrepancies in crime rates
At this point friends of unalloyed racial profiling might respond to the notion of symbolic harms by appealing to the fact that since most crime is intraracial [Read Atkin on Black-on-Black Violence] abstaining from profiling members of a racial group with a higher crime rate (and setting aside, for now and the rest of this essay, the finer point about crime elasticity made in the previous section), might be most harmful to members of this group and harmful in a way much more real and material than symbolic harms. For this reason—especially if we are talking profiling to prevent serious crime—it could be that the true beneficiaries of profiling are those law-abiding members of the racial group that is profiled, who would otherwise have been the victims of crime. Defenders of unalloyed racial profiling might add that, historically, African-Americans have complained of under-policing of areas of cities with many African-American citizens, not of over-policing.
At this point, I think opponents of unalloyed racial profiling should concede that there is something to this claim and that it does provide some sort of non-ideal, pro tanto—not overall—justification for unalloyed racial profiling. However, in doing so they should also point to the limitation of even this kind of argument—a limitation that shows just how hard it is to make justice and racial profiling meet. For a question that needs to be answered in relation to the present attempt at justification is why racial profiling is an efficient instrument in preventing crime in the first place? Again setting the finer point about crime elasticity made above, if crime rates across different racial groups did not differ, obviously, racial profiling would serve no purposes whatsoever.
In response to this question, one plausible explanation points to the social and economic exclusion of African-Americans from other spheres of society. If African-Americans had the same social and economic opportunities as other racial groups in the US, presumably, the African-American crime rate would converge with that of other racial groups. On the assumption, that this story is at least a quite significant part of the explanation of why unalloyed racial profiling of African-American is an efficient means of reducing crime, a further question arises: is it unjust that African-Americans are socially and economically excluded? If it is, an important reason why racial profiling of African-Americans is instrumental in fighting crime is the unjust imposition of social and economic exclusion of the very same group of people. Accordingly, it will be difficult for members of other groups to justify racial profiling to African-Americans on the ground that, due to the fact that most crime is intraracial, they will benefit from unalloyed racial profiling—indeed, perhaps benefit more than other racial groups. This is difficult for the very concern for the wellbeing of African-Americans that this justification appeals to would be served better by bringing to an end the social and economic exclusion of African-Americans that render racial profiling of them an efficient instrument of law enforcement in the first place! Hence, the justification rest on a normative premise that suggests that measures should be made to address the social and economic exclusion of African-Americans and yet many non-African-Americans do not support such measures.
More generally, if we think that a society is unjust to the extent that its members cannot justify its policies—here: racial profiling—to each other, where this involves their being able to justify relevant, factual assumptions—here: the social and economic exclusion of African-Americans that render racial profiling an efficient instrument of law enforcement—that the justification of these policies rest on, then a justification of racial profiling based on a concern for reducing the amount of intraracial crime suffered by African-Americans shows the US society to be more unjust given the assumptions made [Read Lebron on Hypocrisy Democracy]. Of course, it might be rejected that a just society is one, which is characterized by such interpersonal justifiability. However, the idea that this is indeed a condition of a just society is widespread and, among political philosophers, associated with the influential contractualist position in political philosophy.
“The very concern for the wellbeing of African-Americans that this justification appeals to would be served better by bringing to an end the social and economic exclusion of African-Americans that render racial profiling of them an efficient instrument of law enforcement in the first place”
Obviously, in this essay I have glossed over some huge issues and there is much more that needs to be said. I have tried to do so in my book, Born Free and Equal? A Philosophical Inquiry Into the Nature of Discrimination (New York: Oxford University Press, 2013). However, the overall conclusion that should emerge from this brief essay is that even under the most favorable assumptions regarding its characteristics and its effects, racial profiling is very difficult to justify. Indeed, to the extent that some sort of pro tanto justification can be given for unalloyed racial profiling, this might simply reflect a failure of interpersonal justifiability. This is not to say that there are no conceivable circumstances under which racial profiling is justified. Like other forms of group profiling, e.g. age and gender profiling, which I mentioned above, it is not wrong as such. However, this is not to suggest that racial profiling, as we know it, is not wrong. Indeed, the very point of arguing in favor of this essay’s overall conclusion is to suggest that there are strong reasons to think that it is not. Also, it is not to suggest anything about the tragic shooting of Mr. Brown. As I wrote in the beginning of this piece: whatever view one takes about the justifiability of racial profiling, the shooting of a non-threatening teenager in response to a minor traffic offense and a brief struggle, which, according to Ms. Tiffany, at the time of the shooting was over, is wrong by any plausible standards. Accordingly, while the case might—I say “might” because, as I wrote above, the public is yet to learn what, if any, role race played in the shooting—attest to the sort of misconceptions and biases that using racial profiles might result it, its wrongness does not speak the more principled question in applied ethics about the justifiability of racial profiling. However, the shooting of Michael Brown is likely to bring the justifiability of racial profiling back to the center stage of the political agenda in the US for some time, and if it results in a serious public rethinking of present police practices at least one good thing would have come from the events in Ferguson on August 9 and the days that followed. This, of course, is just a hope for the future born by the depressing facts about the past, including facts about previous shootings of unarmed African-Americans by the police.
Footnotes & References
 For such a distinction, see Mathias Risse and Richard Zeckhauser, “Racial Profiling”, Philosophy and Public Affairs 32.2, 2004.
 Frederic Schauer, Profiles, Probabilities, and Stereotypes (Cambridge, MA: Harvard University Press), p. 195
 Laurence Thomas “Statistical Badness”, Journal of Social Philosophy 23.1 (1992)