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Abstract

I argue that racial profiling gives minority groups reason to perceive a threat of violence and wrongful arrest when interacting with the criminal justice system, consequently leading them to engage in self-limiting conduct in order to avoid being profiled. As a result, they may ultimately exercise a de facto second-class citizenship status through a limited exercise of basic rights and access to public services. This would suggest, contra consequentialist defenders of the practice, that a public ban on profiling would serve to contain an important, but often overlooked source of racial injustice and that a thorough cost–benefit analysis should include these costs.

Keywords

racial profiling distrust policy interpretation consequentialism perception-based view

Racial profiling is a controversial practice among philosophers. Some object to the practice on deontological grounds, viewing it as an infringement on rights and equality, while others focus on weighing its consequences against its benefits. In this article, I take the latter approach to shed light on some normatively significant, but underexplored costs of profiling.

Allow me, first, to issue some brief remarks on the background of my discussion. Risse and Zeckhauser (2004: 95) advance an influential consequentialist defence of racial profiling which they define as ‘any police initiated action that relies on the race, ethnicity, or national origin and not merely the behavior of an individual’. They argue that the resentment, hurt and distrust felt by those subjected to profiling are centrally generated by the background injustice, whereas the practice is merely an expression of racism or underlying socioeconomic disadvantages, rather than a wrong in itself (Risse and Zeckhauser, 2004: 95–96). Consequently, these costs should not be included in the cost-benefit calculation; instead, we should only count the incremental harm inflicted by profiling itself, which is modest and outweighed by the benefits of the practice. This consequentialist defence of profiling has been met with several objections. Most relevantly to the present discussion, Lever (2005: 97) argues that consequentialist defenders underestimate the harm caused by profiling and minimize the extent to which the practice exacerbates racism. In response, Risse (2007) argues that Lever misinterprets the expressive harm thesis by assuming that its purpose is to completely separate profiling from racism in police practices. Because of this misinterpretation, he argues, Lever fails to identify non-expressive harms that are centrally caused by profiling, and, as such, the consequentialist case for profiling remains intact.

This article aims to vindicate the consequentialist case against racial profiling by highlighting a distinctive, underexplored way in which profiling can generate harms. I advance a perception-based critique of profiling, by arguing that communities of colour can reasonably interpret it as a serious threat, and that, based on this interpretation, they may suffer a range of harms which have so far been neglected in cost–benefit analyses of the practice.¹ The perception-based critique advanced in this article owes its premises to Hosein’s (2018) argument that racial profiling causes significant harms because it is reasonably interpreted by racial minorities as indication that their interests will be discounted within the criminal justice system. In a departure from Hosein’s view, I argue that it is not always reasonable for racial minority members to infer from profiling that they have an overall inferior political status, in all key policy areas. Nevertheless, I show that in taking the vantage point of the would-be profiled, we can identify a wide range of perception-based harms such as reduced employment and educational opportunities, limited access to public services and a threat to the exercise of their basic civil rights. On their own, each of these individual harms may have important socioeconomic or political consequences, but, when taken cumulatively, they indicate that, from a societal perspective, profiling causes racial minorities to exercise a de facto second-class citizenship status.

This article aims to contribute to consequentialist debates about profiling in several ways. In shifting our attention to how profiling is perceived by the would-be profiled, we are able to identify a wider range of normatively significant harms, which are not usually included in consequentialist assessments of the practice. As such, my view has significant implications for how we should run a cost–benefit analysis of profiling, since it urges us to include long-term, perception-based harms in that calculation, rather than focus solely on short-term maximization. My analysis may also be distinguished from other views for focusing on the effects of racial profiling on all the members of racial groups (the would-be profiled), rather than only those who are actually being profiled. In taking the vantage point of communities of colour, we are able to isolate the incremental harm generated by profiling, which would be avoided, or at least greatly reduced, if the practice was outlawed. Implicitly, bringing considerations about the mental states of the would-be profiled into sharp focus would strengthen the position of critics of profiling against consequentialist defenders.

My discussion proceeds in three parts. The first section sets out my premise, that racial minorities have reason to interpret profiling as a threat, given their relation with the police, and the state, more broadly. Here, I offer a brief outline of Hosein’s view, highlighting both its contribution to my argument and its limitations. Second, I advance my perception-based consequentialist view, according to which racial profiling leads communities of colour to reasonably anticipate substantial costs and to engage in self-limiting conduct in order to avoid being profiled. The third section draws on empirical evidence to specify these self-limiting behaviours and the reasons why political theorists should care about them. In my conclusion, I issue some brief remarks about the implication of my argument for choosing the correct normative framework is for thinking about racial profiling. While I do not aim to show that all kinds of profiling are unjustified, it is noteworthy that the sorts of issues I highlight may lead to that conclusion on a rights-based or rule consequentialist account.

Before I begin, some preliminary clarifications are in order. First, in this article I focus on pre-emptive profiling,² which seeks to identify individuals who are likely to commit a crime, even when they have not previously engaged in criminal acts; in contrast, post-crime profiling focuses on identifying those that have already committed a crime by narrowing down a pool of suspects (Lever, 2016). Second, like Risse and Zeckhauser, I assume that racial profiling is an effective tool for reducing crime and that screening racial minority members beyond proportional aims is illegitimate. Finally, the majority of my discussion takes into account the accompanying injustices of profiling, such as police brutality and abuse; the reason for this is simple. Unlike most philosophical discussions on profiling, I do not focus on those being profiled, who may or may not experience the use of physical force. Rather, I am concerned about how racial profiling is experienced by people of colour even when they themselves are not being profiled. This vicarious experience involves awareness of the practice through highly publicized cases such as the murders of George Floyd and Breonna Taylor, as well as of cases in which close others have been racially profiled. The full extent of harm cannot properly be spelled out unless we view these practices as they are seen, through publicly available evidence, by racial minorities.

Racial Minorities and Policy Interpretation

In this section, I outline the premise of my argument – racial minorities are more likely to interpret policies as a threat because of the background of injustice against their group, experiences of institutional racism and distrust in the criminal justice system and the state, more broadly. Throughout this section, I acknowledge that the view advanced in this article owes much of its premise to Hosein’s (2018) argument that profiling creates an unjust relation between racial minorities and the state, by giving the former reason to develop an inferior sense of political status. After outlining his argument, I highlight perceptions of profiling as a significant, yet neglected component of the assessment of the practice. In particular, I share Hosein’s view that perceptions as such matter, provided that they are reasonable, even if they are objectively unsupported. However, I also argue that the kind of perception-based consideration he uses is inconclusive because it relies on a controversial empirical claim that profiling leads people to develop an overall sense of inferior political status.

Hosein’s View

Hosein (2018) argues that profiling gives people reason to develop an overall sense of inferior political status, thereby creating an unjust relationship between the members of racial minorities and the state. His argument starts from the premise that racial minorities distrust the criminal justice system and, on that basis, have formed the belief that their interests and rights will be discounted in interactions with the police. The empirical evidence for this claim is compelling, with Nadal et al. (2017) finding that African American and Latinx communities in the US often distrust law enforcement agencies, harbouring particularly negative perceptions of the police. This lack of trust is explained, first, by the evidence available to communities of colour about their interactions with the state and relative social status. Police brutality against African Americans is widespread in the US and, often, normalized and legitimized through the state’s decision to not punish the culprits in a proportional manner (Brunson, 2007). The criminal justice system is heavily biased against Black and Latinx minorities who are often given more severe sentences for the same crimes, racially profiled and overrepresented in prison populations (Steffensmeier and Demuth, 2000). Furthermore, in light of anxieties about race-based criminality, the coercive institutions of the state may abuse the trust of these communities, such as in the case of FBI’s ‘community outreach’ events as a pretext for spying on AMEMSA³ groups and mosques (Markon, 2011). Finally, awareness of historical injustice also contributes to this distrust, through racial parental styles and priming. Hughes et al. (2006: 15) conceptualize racial socialization as ‘the transmission of parents’ world views about race and ethnicity to children by way of subtle, overt, deliberate and unintended mechanisms’. An extensive body of research shows that most African American parents engage in this practice while bringing up their children and that they do so in a very homogeneous way. Alongside messages of racial pride, parental strategies commonly include highlighting racial discrimination as a barrier to the success of African Americans in society, which may decrease overall trust in state (Neblett et al., 2008). More relevantly, racially charged incidents involving harassment, police brutality or shootings of young Black men may also shape racial parental styles and further increase distrust in law enforcement agencies. For instance, a study found that the murder of Trayvon Martin led many African American parents to engage in emotional processing with their children and advise them on how to react if they found themselves in a similar situation (Thomas & Blackmon, 2015).

Hosein’s second premise is that racial minorities also harbour distrust in other key policy areas such as housing, education and employment. Showing this is essential for his conclusion that the would-be profiled are caused to develop an overall sense of inferior political status, in that they believe that their interests are likely to be discounted not just within the criminal justice system, but by all key branches of the state. This belief is motivated by evidence of racial disparities such as those illustrated by Tommie Shelby’s (2018) description of dark ghettos in the US, predominantly Black urban neighbourhoods with high concentrations of poverty, limited educational and employment opportunities, and high crime rates. African Americans are also socially stratified through current forms of welfare provision, which are designed to relegate women to social reproduction tasks such as childrearing (Orloff, 2002) and men to low-wage, seasonal and hazardous employment (Belkhir et al., 2001). From this evidence, communities of colour may infer that institutional racism is still tolerated, working to perpetuate structural disadvantage with regard to the distribution of resources, power and opportunity and to entrench White supremacy.

Against this background of distrust, Hosein argues that the members of racial minorities may reasonably interpret racial profiling as indicating that the state is willing to discount their rights and interests, not only within the criminal justice system, but also in all other policy areas. On his view, establishing that interpretations are reasonable is essential to determine the limits of state responsibility regarding the costs that arise out of the practices that are being interpreted. Reasonable policy interpretations require a person to have ‘sufficient grounds to justify her belief’ by appealing to the evidence that is available to her about her standing in the political community (Hosein, 2018: e7). Here, we are concerned with objectively reasonable interpretations, in that, given the evidence, any similarly situated individual has reason to interpret racial profiling as indication that their interests will be substantially discounted. Since racial minorities are severely disadvantaged as a result of frequent and egregious instances of institutional racism, particularly within the criminal justice system, they may reasonably interpret profiling as a severe threat. In contrast, Christians who claim they feel politically inferior because of the state’s refusal to give pride of place to their religious symbols fail to satisfy the reasonableness condition. This is because they are not a stigmatiszed group in the US, and their claim involves a demand for preferential, rather than equal, treatment.

This reasonable interpretation leads to the development of a sense of inferior political status, defined as ‘the perception or belief that the state substantially discounts the rights and interests of members of one’s group relative to the rights and interests of members of other groups’ (Hosein, 2018: e5). Since the criminal justice system plays an important role in the lives of some racial minorities, to the extent to which it may shape their prospects across other policy areas, they are likely to develop an overall sense of inferior political status by forming the belief that their interests will be discounted not just by the police, but indeed across all key aspects of social and political life. Having an overall sense of inferior political status threatens civic participation and it creates an unjust relation between the members of racial minorities and the state. Hosein concludes that, as a matter of justice, the state ought to secure, for each citizen, the confidence that her interests and her rights are being given equal weight; as such, under present circumstances, racial profiling is unjust and should be replaced by randomized screening.

An Objection to Hosein’s Perception-Based View

Hosein’s argument has many merits, the most important of which is its focus on how profiling is perceived by racial minorities. However, I argue that it is not always reasonable for racial minority members to develop a sense of inferior political status overall in response to racial profiling. This claim is central to Hosein’s conclusion, since it is used to explain why the would-be profiled may be excluded or alienated from civil life. First, minority distrust in policy areas other than law enforcement is not as homogeneous or common as he assumes, but rather dependent on factors such as socioeconomic status, lived experience and ideology. While it is true that many members of racial minorities live in racially segregated, materially deprived areas, it is also the case that a considerable proportion of them live in more affluent neighbourhoods, are well-educated, have high-paying jobs and are more likely to benefit from state-funded scholarships and affirmative action initiatives. Mangum (2016) supports this claim, finding that the level of trust of racial minority members in the government varies and is shaped by demographics, social characteristics, personal interactions with the state, the state of the economy and racial awareness.

Second, not all members of racial minorities have equally compelling evidence to give them reason to assume that their interests will always be discounted within the criminal justice system and in other policy areas. Those who are better off are less likely to engage with, and feel betrayed by, public housing and welfare provision institutions or inadequate educational establishments (Sherman et al., 1989). Equally, those who do not live in deprived, predominantly Black neighbourhoods usually have fewer interactions with the criminal justice system and are more likely to view it as an isolated policy area in which their interests are discounted, rather than indication of their overall inferior political status. It is not surprising, then, that the evidence which Hosein provides for this claim focuses entirely on racial minority members that fare worse from a socio-economic point of view and who live in segregated, materially deprived neighbourhoods with poor housing and schools. However, when looking at evidence about differences in socioeconomic standing, interactions with state and even ideology, it becomes clear that while racial minority members are generally distrusting of the criminal justice system, their levels of trust in other key policy areas may vary. Therefore, Hosein’s conclusion is that racial profiling causes people to develop a sense of inferior political status overall is too hasty. While he is right to argue that the members of racial groups may reasonably interpret profiling as indication that the police are willing to discount their Interests, they may still lack sufficient grounds to reasonably anticipate that their interests will be discounted across all key policy areas.

My Perception-Based View

Having outlined Hosein’s view and its limitation, I can now spell out the distinctiveness and advantages of my own perception-based critique of profiling. First, I agree with him that the distrust in the criminal justice system is a key factor in how profiling is perceived by racial minorities, but I do not commit to his second premise, that these groups can reasonably expect their interests to be discounted in all other policy areas. While the latter may be true to a large extent, it could still be controversial in case of minority members that are better off or who have less frequent interactions with the state.

Second, I also reject his conclusion, that profiling is wrong because it leads people to develop an overall sense of inferior political status. On my view, profiling may be reasonably interpreted as a substantial threat, over which the would-be profiled have very little control and to which they may be subjected in wide range of social contexts. This interpretation leads the would-be profiled to engage in strategies to avoid interactions with law enforcement, such as limiting their access to public services and their exercise of basic civil rights. Taken collectively, these consequences amount to an actual inferior political status (hereafter second-class citizenship),⁴ defined independently of whether people internalize it or not. Furthermore, this second-class citizenship status manifests in all key policy areas, not because racial minorities have generalized distrust in all branches of the state, but because they are likely to be profiled by law enforcement even in education or healthcare. By focusing on the perceived threat of profiling, the potential for wrongful arrest, violence and even death, we are able to expand the list of harms which ought to be included in the cost–benefit analysis of profiling because these can arise even if people do not feel as though they have an inferior political status.

Third, my argument is distinctive because it applies a perception-based perspective to the cost–benefit analysis of profiling. Hosein does mention some of the consequences of profiling, such as civic exclusion, but ultimately focuses on a deontological view, according to which it is unjust for people to feel like they have an inferior political status. As a result, the strength of my approach is that it allows me to establish that racial profiling is problematic on the basis of the very approach that has been used to justify it.

In this section, I have presented an account of Hosein’s critique of racial profiling, highlighting both its merits and its limitations. My argument shares the premise that distrust in the criminal justice system shapes interpretations of profiling and acknowledges the importance of including perception-based harms in the cost–benefit analysis of the practice.

Perceptions of Racial Profiling

In the previous section, I have outlined the premises of my consequentialist critique of racial profiling. First, racial minorities distrust the criminal justice system because of evidence about police abuses, unfairness and historical injustice. Second, this distrust leads the members of these groups to interpret profiling as a serious threat, since it is a situation in which their interests are likely to be discounted. Third, this interpretation is objectively reasonable, since any similarly situated individual would perceive profiling in this way, given the publicly available evidence about racial disparities in the criminal justice system. In this section, I draw on empirical evidence to outline in more detail how the would-be profiled may reasonably interpret profiling – as a frightening, high likely experience, to which they may be subjected arbitrarily in virtually all public spaces, which may impose extremely high costs on their lives. I aim to show that each of the interpretations that I discuss can arise independently of whether the would-be profiled feel as though they have an inferior political status overall, being based on the anticipation that their interests are likely to be discounted specifically in the context of police encounters.

‘Racial Profiling Is Unavoidable and Highly Likely in Public Spaces’

Compared to White citizens, racial minority members are more likely to assume that profiling is done arbitrarily, with no legitimate reason, based purely on their race or appearance (Nadal et al., 2017). This contributes to amplifying the perceived threat of profiling by the would-be profiled in two ways. First, it suggests that as long as they are in public, they are likely to be targets of profiling because the visible markers of racial membership make them stand out. Implicitly, profiling is a particularly likely occurrence in ‘the white space’, opportunity-abundant neighbourhoods, schools, workplaces and even roads where White citizens are overwhelmingly present and racial minorities are regarded with suspicion, often required to produce an ID or state their business (Anderson, 2015). Second, the belief that racial profiling is conducted arbitrarily may also amplify feelings of powerlessness, since it suggests that there is nothing that non-White citizens can do, or refrain from doing, in order to minimize the likelihood of being profiled. They may be stopped and searched regardless of how they dress or present themselves, regardless of whether they are just going about their business and not engaging in suspicious behaviour (Lamberth, 2010).

To illustrate, consider the case of Larry Skyes, the African American head of the Board of Education in Toledo, Ohio, bank vice-president and respected civic leader, who was stopped by the police as he was driving back from a conference in Cleveland. Mr Skyes had not broken any traffic laws, was dressed in a crisp suit and was prompt in presenting his documents. Nevertheless, the police officer proceeded told him to get out of the car and proceeded to frisk him, noting that ‘you can’t be too careful. You might have a gun’ (Harris, 2003). In this case, Mr Skyes had good reason to infer that he had been stopped and frisked purely on the basis of his skin colour, even if, given his circumstances, he may not reasonably assume that he has an inferior political status overall, since he enjoyed opportunities or advantages in other aspects of life. Mr Skyes’ experience is not unique or even rare; in fact, most of the would-be profiled have never actually committed a crime (Lerman and Weaver, 2014).

The belief that profiling is likely to be both frequent and unavoidable in spaces that are predominantly White may generate significant perception-based costs, as I will show in the following section. It suggests that behavioural and appearance-based strategies to avoid being profiled, such as dressing in a mainstream style or behaving in a way that distance oneself from racial stereotypes, are futile. The only effective strategy, from their vantage point, is to limit their presence in public spaces that are populated primarily by White citizens, even if this involves forfeiting significant rights and opportunities (Anderson, 2015).

‘Racial Profiling Indicates That the State Is Willing to Impose Substantial Costs’

Racial minorities may reasonably interpret profiling as indication that the police is willing to impose substantial costs on them (Hosein, 2018). There is extensive evidence to support this claim, since the members of these groups are disproportionately subjected to unwarranted arrests, harassment, violence and even death, at the hands of the police (Weitzer and Tuch, 2002). In fact, over the life course, about 1 in every 1000 Black men can expect to be killed by police, 2.5 times more likely than White males (Edwards et al., 2019). The same is true of legal sanctions, since African Americans are incarcerated at more than 5 times the rate of Whites and much more likely to be wrongfully convicted, and later exonerated for serious crimes, especially when the victims are White (Gross et al., 2017).

These perceptions of threat in relation to profiling are widespread among the members of racial minorities, regardless of whether they feel as though they have an inferior political status overall. Highly publicized cases like that of Tamir Rice, a 12-year-old African American boy shot instantaneously while playing with a toy gun, serve to reinforce the anticipation that the police are ready to impose extreme costs on racial minority groups. Furthermore, Feagin (1991) found that narratives of discrimination at the hands of the police are abundant in Black neighbourhoods, where residents often discuss their experiences and potential strategies to avoid being targeted. The lived experiences of stop and frisk practices as recounted by racial minorities highlight it as a demeaning and humiliating practice, and even intimidating and frightening when conducted with the discretionary use of force by law enforcement agents (Romero, 2006). These practices have rippling effects leading entire communities to endure ‘fear as a way of life’, with the police presence being regarded as ‘military-style occupation’ even in more affluent New York neighbourhoods (Perez-Huber and Solorzano, 2015).

‘Random’ Stop-and-Searches Involve Racial Profiling

Since profiling is seen as a frequent experience, to which racial minorities can be subjected arbitrarily, the members of these groups often assume that whenever they are stopped and searched, they are being racially profiled (Stone & Pettigrew, 2000).⁵ As Boonin (2011) points out, African American drivers have no way of knowing whether they are being racially profiled when stopped by the police. For a Black citizen, regardless of their circumstances, even a random stop and search could be seen as a context where their interests are likely to be discounted, given the prevalence and normalization of racial profiling, on the one hand, and their distrust in the police. This perception is further supported by empirical findings showing that police and immigration officers commonly gaslight communities of colour, by making it appear that their policing practices represented ‘a fair and just process to any who would inquire’ (Tobias and Joseph, 2020). In contrast, if a White man were randomly searched, he would find it inconvenient, but lacking the background distrust in the police, he would not take it as an indication that the state is willing to discount his interests or impose particular costs on him for no good reason. This is evident in Boonin’s (2011: 330) recounting of his most recent encounter with airport security:

But the security officials who compelled me to undergo this search had no particular reason to think that I was guilty of anything. Indeed, they didn’t pick me out for any particular reason at all: they did this to everyone. (Boonin, 2011: 330)

In this section, I have argued that racial minorities may reasonably interpret profiling as a frequent occurrence in public spaces, to which they may be subjected without good reason and which may be impossible to avoid while in public. Given perceptions of the police as racially biased, the members of racial minorities are likely to form the belief that they are being profiled even when the police are actually conducting random stop-and-searches. In the remainder of the article, I use a consequentialist framework to argue that these interpretations may lead people to engage in self-limiting conduct which results in harms that ought to be taken into account in the cost–benefit analysis of profiling.

Perceived Costs, Actual Consequences and Second-Class Citizenship

So far, I have outlined how racial minorities may reasonably interpret racial profiling – as a highly likely occurrence to which they are subjected arbitrarily and which may impose substantial costs on them. Given these perceived costs, the members of racial minorities often seek to avoid or to minimize their interactions with law enforcement agents, by engaging in self-limiting conduct in contexts where they are most likely to be profiled (Weitzer and Brunson, 2009: 241). In this section, I identify a non-exhaustive list of perception-based harms caused by interpretations of profiling: limits on the access to public services, such as the police, education and healthcare, and on the exercise of basic civil rights, such as freedom of speech and of association, and the right to peaceful protest. I highlight the normative significance of each of these individual costs of profiling, and demonstrate that, taken together, they lead to long-term societal costs as well – the de facto exercise of a second-class citizenship status by racial minorities and the exacerbation of racial injustice.

Perceived Costs and Adaptive Preference Formation

How do the perceived threats of profiling lead to changes in preferences, and, in turn, to behaviour modifications? According to Lerman and Weaver (2014), custodial citizens, defined as communities of colour with a history of negative interactions with the criminal justice system, employ a range of behavioural and psychological strategies to minimize their contact with law enforcement. Since profiling is perceived as a likely occurrence while in public and as posing potentially severe risks, the members of racial minorities often modify their conduct while in public in order to avoid raising suspicion and being profiled in the first place. For instance, since the perceived likelihood of being profiled as an AMEMSA citizen is so high in an airport, second-order volitions such as the desire to express one’s faith in public by wearing religious attire may be superseded by a need to avoid looking conspicuous, being profiled and exposed to risks.

These changes in the priority of desires may be characterized as adaptive preference formation, through which the victims come to believe, act and develop preferences and desires that appear to internalize their oppressive contexts (Stoljar, 2014). Adaptive preferences are troubling from a normative point of view because they denote an autonomy deficit. On Gerald Dworkin’s (1988) conception, an autonomous preference is characterized by autonomously formed lower-order motivations which have to be consistent with our higher order preferences. In our case, the first-order preference – to look inconspicuous in an airport – is motivated by a new second-order volition – to avoid being subjected to the costs of profiling. Yet, we may assume that the members of racial minorities would have an even higher order desire to not have to face unwarranted racial profiling altogether and to not have to factor the potential costs into their decisions. In contrast with character planning, which involves a rational, autonomous adaptation to one’s environment, inappropriately adapted preferences are formed as a response to irrelevant causal factors that operate ‘behind the back’ of the person (Elster, 1983). A further normative issue is that, although often disguised as legitimate expressions of taste, adaptive preferences are often triggered by coercive norms and the institutionally racist actions that appear to validate them (Stoljar, 2014). Profiling leads the would-be profiled to fear for their lives and to endorse that fear as a primary motivation, thus having a disciplinary effect on these communities. They are, as the saying goes, between a rock and hard place – the looming likelihood of being shot or wrongfully arrested by the police and the difficult decision of sacrificing their civil freedoms and opportunities.

To summarize my point, the perceived threat and frequency of profiling leads people to form adaptive preferences and to engage in self-limiting conduct so as to avoid being profiled in the first place. As I will proceed to argue, this self-limiting conduct may amount to significant harms, the exercise of a de facto second-class citizenship and the exacerbation or racial inequality.

Access to Public Services

The perceived threat of racial profiling may lead racial minorities to limit their access to or engagement with key publicly-funded services, such as policing, healthcare and education. First, since the members of these groups already perceive law enforcement as a policy area, which routinely discounts their interests, cases of racial profiling may only serve to further lower their trust (Nadal et al., 2017). Another contributing factor to this distrust may be highly mediatized racial profiling cases that involve police brutality and victimization, given evidence that official accusations of Islamophobic crime has often invited criticism of the Muslim victims (Cheng, 2015). Unsurprisingly, the self-limiting conduct in this case often includes failures to report hate crimes, since the members of some racial minorities may anticipate that they will not be taken seriously, or, worse, that will be subjected to the threats which they associate with profiling (Githens-Mazer and Lambert, 2010). Consequently, BIPOC (Black, Indigenous, and People of Colour) may incur normatively significant costs. For one, they may resign themselves to being victim to racial harassment and even violence out of the fear that the costs of potentially being profiled are even higher if they reported the hate crime (Abu-Ras and Suarez, 2009). This limited access to policing services is at odds with people’s rights to security and to freedom from discrimination which entitle people to live without fear of being subjected to violence or racially motivated mistreatment. Exposure to hate crimes may lead to alienation from public life and severe psychological distress, anxiety, anger and shame (Equality and Diversity Forum, 2018).

Second, the fear of being profiled may contribute to a limited identification with the educational sector, which can lead to significant losses to opportunities that are essential ingredients of a flourishing life, such as building skills, identifying and nurturing talents, obtaining qualifications, and eventually, securing meaningful employment. While it is true that schools are not the sorts of places in which people can usually expect to be subjected to stops and searches by the police, there may nevertheless be some cases in which profiling takes place in this context. For example, the Prevent Safeguarding Duty in the UK requires teachers and university professors to identify students that may be vulnerable to extremist ideas and to refer them to a government de-radicalization programme. The self-limiting conducts and anxieties regarding these kinds of policing are, unsurprisingly, most common among AMEMSA students, since they are part of a group that is often associated with religiously motivated terrorism and radicalization of the young. In response, they may engage in self-censorship, by avoiding to discuss politics or religion, even in classes where such topics are relevant, out of the fear that they may be seen as having radicalized views and referred to the government (Murtuja and Tufail, 2017). There are many reasons why we may find self-censorship in this context problematic. Students may be robbed of the educational and self-development benefits that come from articulating their views in public, from exercising their critical thinking skills and from being evaluated thoroughly by educators. Moreover, a substantive body of research argues that students who anticipate being targeted on the basis of their race find it more difficult to identify with their school, which can have dire consequences for their academic performance and aspirations (Steele, 1997). This failure to identify with a formative environment has a huge impact on development, since it may strain potential relations with peers, leading to alienation and distrust of group outsiders, psychological distress and even personality disorders (Sellers et al., 2006).

Third, racial profiling may also negatively impact the access to public healthcare systems among racial minorities. Although, so far, I have focused on profiling by law enforcement agents, it is worth noting that this practice is also widely used in healthcare provision, leading to widespread racial health disparities. Medical racial profiles associating African Americans with a propensity for obesity and cardiovascular disease or Latinx patients with a high pain threshold, have been shown to lead to ‘errors in diagnosis, distorted judgments about the appropriate course of treatment, and, ultimately, to different and inferior medical treatment’ (Bowser, 2001). In turn, the anticipation of racial profiling in the medical field gives communities of colour reason to further distrust the medical establishment which has been found to correlate with fewer physician visits, an erosion of positive health behaviours and more unmet treatment needs (Kemper et al., 1999). Law enforcement profiling may also contribute to limiting the access to healthcare among AMEMSA groups. For example, the Prevent Duty in the UK also requires physicians and mental health counsellors to identify patients that are vulnerable to radicalization and to refer them to the government’s de-radicalization programme. As a result, the threat of legal sanction may lead AMEMSA individuals to lose trust and refrain from seeking medical treatment, out of the fear that they will be profiled. This is true, particularly of mental healthcare, given anxieties about being seen as an extremist when admitting to suffering depressive symptoms (Ciftci et al., 2012). Perceived costs to accessing healthcare is normatively significant as it may conflict with basic rights to health and to receive medical care and it may effectively diminish one’s prospects for a flourishing life.

The Exercise of Basic Civil Rights

Civil rights that enable political participation, freedom of speech, association and religion are guarantees of equal opportunities and protection under the law. To be denied the full exercise of these rights amounts to an actual inferior political status, where one’s interests are routinely discounted and one is vulnerable to the arbitrary exercise of power. While communities of colour are not formally denied this status, the perceived costs of racial profiling may lead them to limit the exercise of their basic civil rights.

First, in order to avoid the perceived threat of profiling, the members of racial minorities may limit the expression of their group affiliation while in public, which may involve a limitation of their freedom of religion. This is illustrated by the example of AMEMSA individuals who refrain from wearing religious symbols or attire while in airports, in order to appear less conspicuous to boarder security agents. Equally, the perceived costs of profiling may exacerbate psychological phenomena common among stigmatized individuals, such as stereotype threat–the belief that certain actions or ways of presenting oneself to the world appear to fit stereotypes about one’s racial identity. Consequently, people may strive to conduct themselves in ways that distance them from racial stereotypes, even at the cost of alienating themselves from their culture and their community. Stanford psychologist Claude Steele captures this case quite vividly in his example of a Black young man who, being fed up with Whites purposely ignoring or avoiding him in the most mundane of social settings, adopted the habit of whistling Vivaldi music while in public (Steele, 2011). Najdowski et al. (2015) found that stereotype threat is often experienced during police encounters and that this leads the profiled to attempt to self-regulate and to adjust their behaviour so as to avoid being seen as criminals. Many liberal theorists should find it troubling that some people perceive costs to practising their religion or expressing their cultural affiliation in public, and even more so that they feel the need to distance themselves from their racial group. For example, Kymlicka (1991 [1989] argues that the rights to cultural expression are tantamount to individual autonomy and a key ingredient of a flourishing life.

Second, profiling may also hinder various forms of political expression such as online activism and exercising freedom of speech in order to express grievances about the government. For instance, the perceived threat of racial profiling may silence AMEMSA individuals, leaving them even more vulnerable to institutional mistreatment. In the UK, the Prevent Strategy defines extremism as ‘vocal or active opposition to fundamental British Values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs’. To these groups, political activism may appear to be costly, since expressing mundane grievances against the government may be interpreted as extremism and entrench their labelling as a suspect community (Heath-Kelly, 2013). The profiling of AMEMSA groups for terrorism-related offences serves as an illustrative example; the 7/7 London Metro Bombings, AMEMSA spokesmen lost public credibility, being regarded with increased suspicion with relationships between advocacy groups such as the Muslim Council of Britain and the state significantly deteriorating (Elshayyal, 2018). The anticipation of increased hostility, such as heightened policing and the threat of being referred to the government’s anti-radicalization programme, may also lead them limit their freedom of speech online, which serves to demonstrate just how widespread the side effects of profiling can be. Testimonial evidence serves to illustrate this point: ‘I must constantly be cautious about what I am Googling, what I write and publish on blogs, or whether or not I should retweet something about politics, religion or even humanitarian crises – anything which might possibly be misconstrued as “extremism”’ (Zubair, 2017). This raises concerns that the perceived threat of racial profiling may have ripple effects not only in physical public forums but also in online environment, with regard to the right to privacy and to freedom of speech.

Third, perceptions of racial profiling may also lead people to limit the exercise of their right to protest. During the US protests ignited by the murder of George Floyd, racial profiling played a role in the excessive use of police force on peaceful African American protesters. Many international organizations such as the Amnesty International (2020) raised concerns about the unwarranted use of tear gas and physical violence on citizens that were simply exercising their basic freedoms of assembly and speech. While some of the victims of police brutality in the 2020 US anti-racism protest were White, an overwhelming majority included citizens of colour and the violence and arrests that they were subjected to were much more severe. In contrast, much less police violence was recorded during the mostly White ‘American Patriot Rally’ organized by Michigan United for Liberty against the state’s coronavirus restrictions, where armed, violent protesters stormed the state capitol building. The differences regarding the police response in the two protests may well be perceived as linked to racial profiling, specifically to the negative associations between blackness and criminality. As such, racial minorities may perceive extremely severe costs attached to exercising their rights to peaceful political protest, and this may deter them from engaging in activism, a context in which they are highly likely to be profiled. This is significant since self-limiting conduct by which historically oppressed groups limit their presence and voice in public, and the visibility of their protected characteristics may further cement their subordinate status and suppress movements for racial equality.

Second-Class Citizenship and the Exacerbation of Racial Inequality

So far in this section, I highlighted some of the individual perception-based harms that result from the self-limiting conduct in which racial minorities engage in order to avoid the costs of profiling. While each of these harms are normatively significant on their own, it is noteworthy that when taken together, they indicate that communities targeted by profiling exercise a de facto second-class citizenship status. This is because, in addition to individual harms incurred by those that are being profiled, racial profiling may also generate societal costs by relegating communities of colour to an inferior, caste-like status and, consequently, exacerbating systemic racial disparities. It is worth noting that this implication is distinct from Hosein’s problematic empirical claim that profiling leads people to develop a sense of inferior political status. My view does not focus on the subjective dimension of second-class citizenship, whether people feel as though they are second-class citizenship, but on the actual ways in which people might have their political status limited, which are easy to track through empirical studies.

Second-class citizenship may involve a legally recognized status, for instance, awarded to migrant workers (Stilz, 2010), or a moralized notion referring to individuals who have full citizenship status, but who are nevertheless systematically oppressed (Young, 1989). On the latter conception, second-class citizens are unable to access benefits of citizenship, such as key rights and freedoms, and are stigmatized, and vulnerable to domination by others and the state, even if they have the full citizenship status (Allard-Tremblay, 2018). This view captures the long-term effects that arise out of the interpretations of profiling by racial minority members. Given the evidence available to them, these groups reasonably anticipate that police interactions could have disastrous effects and consequently, they seek to minimize the risk of being profiled in the first place. This risk minimization, however, is achieved through the sacrifice of things that are tantamount to equal citizenship: rights, access to tax-funded services, education, security and so on. In the long run, these sacrifices may lead to caste-like distinctions, with racial minorities having considerably fewer educational and employment opportunities, experiencing poorer health and higher crime rates, and being unable to exercise their civil rights and fight for racial equality. Furthermore, since these risk reduction strategies are often transmitted from general to generation, through racial socialization, the second-class citizenship status of the would-be profiled is likely to become more entrenched over time. Children will grow into adults that fear the state and see the police as an instrument of persecution. The forfeiting of educational, medical and occupational opportunities by their parents will reproduce the cycle of material deprivation, crime and stigma, which plays a huge role in their lives. Finally, when generations of minority members are scared into acting as though they were less than full, equal citizens, the possibilities for resistance, for challenging the status quo and for emancipation are severely diminished.

In this section, I have argued that, in perceiving profiling as threat and seeking to avoid being profiled in the first place, the would-be profiled may incur a number of normatively significant individual costs, such as a limited access to public services and exercise of their basic civil rights. In addition, I have showed that, cumulatively, these harms may indicate that profiling also generates societal costs, by leading the would-be profiled to exercise a de facto second-class citizenship status and, implicitly, by exacerbating systemic racism. In my concluding remarks, I show that these harms would count as particularly weighty in the cost–benefit analysis of profiling and, if taken into consideration, the scales might well tip in favour of banning the practice, at least in some cases.

Concluding Remarks

In this article, I have highlighted some significant, perception-based costs of racial profiling that are usually neglected in the consequentialist analysis. In these concluding remarks, I outline key implications of my discussion for the debate between consequentialist critics and defenders of profiling.

First, perception-based harms should be included in the cost–benefit analysis of the practice. To reiterate, Risse and Zeckhauser (2004) argue that the assessment of racial profiling should only include the ‘incremental increase in harm caused by profiling as such, rather than the overall amount that comes to the fore in acts of profiling but is largely caused by underlying racism’. The question, then, is whether banning profiling would positively affect the way in which minority members interpret their encounters with the police and, whether, as a result, they would feel safe to take opportunities and exercise their rights. Although this counter-factual prediction might only be proved right by empirical researchers, a normative point could still be made to support it. Banning profiling would constitute a public condemnation of the practice by the state, which sends the message that the police may not stop and search people purely on the basis of their skin colour, that when one is stopped, that is a random occurrence, and that the law no longer sanctions a licence for abuse and brutality. Of course, it is not quite so easy to ease centuries of racial discrimination, so the resentment and distrust of racial minorities are likely to persist in interactions with the criminal justice system. However, the fear which generates perception-based harms is likely to be diminished, particularly if an abolition of profiling is accompanied by a crackdown on abusive and racist practices within law enforcement.

Second, if we agree that these perception-based harms should be included in the cost–benefit analysis of profiling, then the position of consequentialist critics would be significantly strengthened. Lever (2005) does mention fear as one of the harms of profiling as she argues,

being stopped on the motorway at night is likely to be a scarier experience. Police in the United States carry guns, and are known to use them. By the side of the motorway no one can really tell what is going on. A wrong move, the inability to hear or understand what is being said, a fit of coughing or a panic attack can all lead to violence and tragedy.

She also argues that profiling may bolster associations between certain races and certain crimes among the members of the dominant group. Yet, Lever’s view does not fully capture the idea that profiling can exacerbate systemic racism by disciplining the behaviour of the would-be profiled. While she is right that fear is in itself a cost, it is the adaptive preferences and subsequent behaviour adjustments that constitute some of the most serious consequences of profiling. The range of harms that I identify are not experienced only by those that are stopped by the police, but potentially by all of those that could be profiled, including future generations.

Third, the implication of including these costs in the consequentialist analysis may be that there are fewer justifiable forms of racial profiling because their costs outweigh the benefits. Notably, in some cases, profiling could still be permissible, for instance, if the police know that the threat of violence has increased for some reason, but they do not know where it will arise. Forced to allocate scarce resources to different areas of the city, they go on the basis of statistical information about the likelihood of violent crime being attempted that is drawn from recent history.

Nevertheless, I believe it plausible for a further argument to made, starting from my view, which would conclude that racial profiling should be banned altogether. Rather than running a cost–benefit analysis, we may take a rights-based approach and make the case that the state has a duty to not give citizens reason to fear the unwarranted imposition of substantial costs and to engage in self-limiting behaviour symptomatic of a second-class citizenship status. We may even make this argument from within a rule consequentialist view, by arguing that law enforcement strategies are expected to generate the best consequences when they do not give citizens reason to fear the threat of violence or wrongful arrests. Furthermore, one may argue, on deontological grounds, that a policy that gives people reason to fear the arbitrary exercise of power denotes a grave political injustice. According to Williams (2005), political legitimacy consists of an answer to the ‘first political question of order, protection, safety, trust and the conditions of cooperation’ that must be justifiable to those subject to it. In other words, a legitimate state cannot subject its citizens to coercion if it is justified on premises that citizens cannot reasonably agree to. To say that a legitimate state should not make its citizens fear unwarranted incarceration or violence is not a controversial moral statement; in fact, much of the contractarian tradition legitimizes political authority as a better alternative to a state of nature in which the strong would dominate the weak. So, liberal neutrality may be grounded in the fear of the arbitrary exercise of power as the summum malum, the worst evil that must be avoided at all costs and the first political question to which political authority offers an answer (Kauffman, 2020). It is this kind of justification that would chime with the liberal project of neutrality as no individual would find it acceptable to live under a political authority that makes them constantly fear for their lives.

These are valuable lines of enquiry, which are beyond the scope of this article. In any case, my aim was to highlight the need to take seriously the perceptions of stigmatized individuals when assessing the impact of controversial practices like racial profiling. Perception-based assessments, I believe, have a far wider application in the normative examination of existing policies and institutional arrangements that can bear not only on cost–benefit analyses but also in a wide range of rights or justice-based arguments.

Footnotes

Acknowledgements

For helpful discussions and comments on earlier drafts, I am grateful to Andy Mason, Michael Saward, Tom Parr and Paul Bou-Habib. I would also like to thank the two anonymous reviewers whose comments have vastly improved this paper.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This work was supported by the Economic and Social Research Council [grant ES/V011995/1].

ORCID iD

Catalina Carpan

Notes

Author biography

Catalina Carpan is a Teaching Fellow in Political Theory, Department of Politics and International Studies, University of Warwick. Her work focuses mostly on the ethics of law enforcement and combining mainstream normative analysis with feminist and Criminal Race Theory.

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