Henry Louis Gates and Racial Profiling: What's the Problem?
Bernard E. Harcourt
University of Chicago; Columbia Law School
September 17, 2009
Paper Presented at the Malcolm Wiener Inequality & Social Policy Program, Harvard University
U of Chicago, Law & Economics, Olin Working Paper No. 482
U of Chicago, Public Law Working Paper No. 277
A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?
The answers to these questions are interconnected: they turn on the fact that racial profiling is just another form of statistical discrimination and that, today, we all embrace statistical discrimination as efficient and justified whenever there are group-based differences in behavior or fact disparities. We have all become, today, statistical discriminators.
This answer, though, points to a solution in the racial profiling quandary, because statistical discrimination is misguided in dynamic situations where there are feedback effects. In policing, it is counter-productive to the law enforcement objective of reducing crime. Like Lani Guinier and Gerald Torres’s metaphor of the miner’s canary, the racial dimension of racial profiling is what troubles us in the arrest of Henry Louis Gates. But, just like the canary whose distress is a warning that the air in the mine is poisoned, the troubling aspect of race in the debate over racial profiling points to the larger problems of statistical discrimination writ large.
Number of Pages in PDF File: 31
Keywords: race, policing, racial profiling, criminal justice, statistical discrimination, ratchet effect, Henry Louis Gates, Jr., Barack Obama, James Crowleyworking papers series
Date posted: September 21, 2009
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