Articles & book chapters

This article develops an intuitive idea of proportionality as a placeholder for a substantive conception of equality, and contrasts it with Ripstein’s ideas, as presented in an annual guest lecture to the Society of Applied Philosophy in 2016. It uses a discussion of racial profiling to illustrate the conceptual and normative differences between the two. The brief conclusion spells out my concern that talk of ‘proportionality’, though often helpful and, sometimes, necessary for moral reasoning, can end up concealing, rather than illuminating, people’s claims to be treated as equals.

Philosophical reflection on racial profiling takes one of two forms. The first sees it as an example of “statistical discrimination,” raising the question of when, if ever, probabilistic generalizations about group behavior or characteristics can be used to judge particular individuals. The second is concerned with how racial profiling illuminates the reproduction of hierarchies of power and privilege based on skin color and morphology. Insights from both approaches can be synthesized to clarify what, if anything, is wrong with racial profiling and what broader conclusions for equality and security follow from the study of profiling.

According to Risse and Zeckhauser, racial profiling can be justified in a society, such as the contemporary United States, where the legacy of slavery and segregation is found in lesser but, nonetheless, troubling forms of racial inequality. Racial profiling, Risse and Zeckhauser recognize, is often marked by police abuse and the harassment of racial minorities, and by the disproportionate use of race in profiling. These, on their view, are unjustified. But, they contend, this does not mean that all forms of racial profiling are unjustified; nor, they claim, need one be indifferent to the harms of racism in order to justify racial profiling. In fact, one of the aims of their paper is to show that racial profiling, suitably understood, “is consistent with support for far-reaching measures to decrease racial inequities and inequality” (134). Hence, one of their most striking claims, in an original and provocative paper, is that one can endorse racial profiling without being in any way indifferent to the disadvantaged status of racial minorities.

In an initial response to these claims, I argued that Risse and Zeckhauser tend to underestimate the harms of racial profiling. I suggested two main reasons why they did so. The first is that they tend to identify the more serious harms associated with profiling with background racism, and therefore to believe that these are not properly attributable to profiling itself. The second reason is that they ignore the ways in which background racism makes even relatively minor harms harder to bear and to justify than would otherwise be the case. Hence, I concluded, racial profiling cannot be a normal part of police practice in a society still struggling with racism, although under very special conditions, and with special regulation and compensation in place, it might be justified as an extraordinary police measure.

I want to stand by those claims. However, Risse’s response to my arguments, here, persuades me that I misinterpreted his earlier position in one significant respect. So, I will start by explaining what interpretive mistake I believe that I made. I will then argue that despite Risse’s patient and careful response to my arguments, my initial concerns with his justification of profiling remain valid.

In their article, “Racial Profiling,” Risse and Zeckhauser offer a qualified defense of racial profiling in a racist society, such as the contemporary United States of America. It is a qualified defense, because they wish to distinguish racial profiling as it is, and as it might be, and to argue that while the former is not justified, the latter might be. Racial profiling as it is, they recognize, is marked by police abuse and the harassment of racial minorities, and by the disproportionate use of race in profiling. These, on their view, are unjustified. But, they contend, this does not mean that all forms of racial profiling are unjustified, even in a racist society, or that one has to be indifferent to the harms of racism to believe that this is so. Indeed, one of the aims of their article is to show that racial profiling, suitably qualified, “is consistent with support for far-reaching measures to decrease racial inequities and inequality” (p. 134), and so to challenge the assumption that “arguments in support of profiling can speak only to those who callously disregard the disadvantaged status of racial minorities.”

In a long and provocative article there is, inevitably, a great deal to discuss. However, I will concentrate on two claims about the harms of racial profiling advanced on page 146, both because these merit careful discussion and because they are critical to Risse and Zeckhauser’s argumentative strategy. Those two claims are (1) that “the harm caused by profiling per se is largely due to underlying racism” and is, therefore, purely expressive; and (2) that “the incremental harm done by profiling often factors into utilitarian considerations in such a way as to support profiling.” We can call the first the expressive harm thesis and the second the incremental harm thesis. I am no expert on racial profiling, or on racism, however, I will suggest that these two thesis are far more controversial than Risse and Zeckhauser assume, and point to serious difficulties with their justification of profiling. In particular, I will argue that the harms of racial profiling are not principally expressive; that some of the harms are quite large; and that even where the magnitude is not that great, background racism makes these additional harms harder to bear and to justify.

I will adopt Risse and Zeckhauser’s definition of racial profiling as “any police-initiated action that relies on the race, ethnicity, or national origin and not merely on the behavior of an individual” (p. 136), which I will assume for the rest of the article. However, unlike them, I use the term “blacks” rather than “African Americans” to refer to the targets and victims of racial profiling. Police who are stopping cars on the motorway are unlikely to differentiate an African American from someone who is black and comes from Nigeria, from Jamaica, from Brazil or from England. Moreover, when we think of police abuse in the United States the cases that spring to mind from the recent past do not simply include Rodney King, the African American beaten by the Los Angeles Police Department, but Abdul Louima, who came from Haiti, spoke very little English, and was horribly brutalized by the members of the New York Police Department. So, while talking about “blacks” rather than “African Americans” may sound rude and disrespectful, it has the merit of catching what is likely to be at stake in many forms of racial profiling: viz. the difference between “whites” and “blacks.”