Against racial profiling

Amit Pundik*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

4 Scopus citations

Abstract

A police officer sees a suspicious bulge in the pocket of a passing pedestrian and deliberates whether to stop and search. The pedestrian is also a young, black man, and from past searches and convictions, the police arguably know that such men are much likelier than other people to carry an illegal firearm. Should the police officer be instructed to take this information into account? This article objects to racial profiling because it relies on the following type of inference: from the individual's membership of a certain racial group, the searcher is invited to infer that the individual is likelier to exhibit some culpable behaviour. The article shows that such an inference to culpable behaviour requires contradictory presuppositions about the freedom of the suspected behaviour. On the one hand, racial profiling ought to presuppose that the individual suspect's behaviour is unfree because the inference it involves takes the suspect's behaviour to be determined by his race, age, and gender, none of which is within his control. On the other hand, similarly to criminal trials, search practices ought also to presuppose the exact opposite: that the individual is free to determine his own behaviour. If the suspected behaviour is free, the involved inference to culpable behaviour is not probative of the individual suspect's behaviour, so profiling methods which rely on it are useless. And if the suspected behaviour is unfree, the inference is probative, but the suspect is not culpable and should thus not be put to trial, whatever the profiled search yields.

Original languageEnglish
Pages (from-to)175-205
Number of pages31
JournalUniversity of Toronto Law Journal
Volume67
Issue number2
DOIs
StatePublished - 1 Mar 2017

Keywords

  • Causation
  • Criminal process
  • Freedom
  • Policing
  • Searches

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