Racial Profiling and State Abuse of Power

by William L. Anderson

My student still smolders with resentment as he tells me his story. He was driving on the freeway, being passed by other cars, when the dreaded blue lights appear behind him. He pulls to the side of the road and is approached by a police officer. The officer looks inside my student’s BMW and sees the young man’s mother sleeping in the back seat. After writing the speeding ticket, the officer leaves the pair alone.

The young man has a friend who was traveling to Atlanta for an early morning job interview, driving a Ford Explorer. Near the Tennessee-Georgia border, state troopers pull him over and begin to search his vehicle. During the search, in which they pull off door panels and do other damage to the interior, they constantly ask him how he could afford such an expensive automobile. After finding nothing, they drive away, the vehicle’s interior a shambles. The driver, shaking uncontrollably, sits in the driver’s seat and weeps following this humiliation.

Both men are black and seem to be part of a national law enforcement trend called racial profiling. Police records show that large numbers of blacks and Hispanics find themselves pulled over on highways for various moving violations. In fact, statistics have shown that when compared to white drivers, blacks and Hispanics have a higher probability of being stopped by police, who invariably want to search their cars for drugs.

A number of places have become notorious for racial profiling. Interstate 95 in Maryland and Florida, the New Jersey Turnpike, and I-10 in western Louisiana have all gained the reputation as highways where people of those two ethnic groups are highly likely to be pulled over by police for various alleged traffic violations.

The practice of targeting certain racial groups, not surprisingly, has elicited outrage among groups like the National Association for the Advancement of Colored People (NAACP) and Hispanic advocacy groups. Sympathetic whites have joined in the chorus of condemnation with New Jersey Governor Christine Todd Whitman recently signing legislation passed by a Republican legislature forbidding police to engage in such racial practices. Missouris has also followed suit. Advocacy groups are also demanding that Congress pass a national anti-racial profiling bill.

That racial profiling exists at all causes one to take notice, however, given the current legal and social climate on racial issues. Why would anyone support what seems to be the outright targeting of people based upon their race? The answer is both logical and sinister, and it cuts to the heart of an issue that is much more important that the racial issue itself: the destruction of Constitutional rights in this country. Unfortunately, the real reason for this practice becomes obscured as people concentrate upon secondary issues.

The public discussion on this issue, not surprisingly, begins and ends with the race of those being stopped by police. The assumption seems to be that the police have developed a sudden dislike for or prejudice against blacks and Hispanics. However, the stereotype of the racist cop does not easily fit in this latest situation. Although there is no doubt that some law enforcement officers hold socially unacceptable racial prejudices, many of the police doing the racial profiling are also black and Hispanic.

Furthermore, the current obnoxious form of racial profiling is a relatively new phenomenon, something that apparently was not an issue a decade ago. That, of course, should be a clue to the real reason that such profiling has been occurring. Another clue is the makes and models of the vehicles being stopped. A third clue, especially pertinent to Hispanics, involves the amount of cash the driver or passengers may be carrying.

Racial profiling is not necessarily a new "frenzy of racism" by the police, but rather a rational response to privileges granted to law enforcement agencies by the "war on drugs." Because asset forfeiture laws permit police to seize the property of individuals on flimsy pretexts of suspicion of drugs, police rightly or wrongly believe that racial minorities provide richer pickings than do whites. Whether or not racial minorities actually are more likely to be carrying drugs or behave "suspiciously" than whites is irrelevant. All that matters is that the police presume it to be true, which means that under the law they can stop whom they want when they want.

Asset forfeiture laws are an attempt to circumvent the prohibitions the U.S. Constitution (and state constitutions as well) have placed upon governments to violate the personal and property rights of our nation’s citizens. In the case of asset forfeiture, authorities have found a way to get around the Fourth and Fifth amendments, and thousands of innocent people have suffered greatly.

One of the worst legacies of the presidency of Ronald Reagan was the war on drugs, which was pushed to new levels during Reagan’s eight years in office. Frustrated with their inability to arrest and convict "drug kingpins," legislatures passed laws that gave police the power to seize the property of drug suspects under the reasoning that the "pusher’s" property had been purchased through ill-gotten gains. Before long, federal and state coffers were bulging with cars, boats, homes, and land that had previously been in ownership of drug suspects.

The problem with asset forfeiture is that those who have had their property seized cannot resort to common-law defenses against the authorities. As stated earlier, all that is needed for police to grab someone’s goods is for the police to have a "suspicion" that the individual in question may either be in possession of illegal drugs or be preparing to purchase them. The authorities are not required to prove either possession or intent of purchase; rather, the burden of proof is upon the accused.

It did not take long for those in law enforcement to find that an even greater haul could be garnered by seizing the property of ordinary citizens who did not have the resources to defend themselves. In a highly publicized case, federal authorities at the Nashville airport took more than $9,000 in cash from a black landscaper who was flying to Houston in order to purchase supplies. According to the police, that money could have been used to purchase drugs. After spending thousands of dollars of his own money, the landscaper was able to convince the courts to return some (but not all) of it. Meanwhile, the federal government had an interest-free $9,000 advance for a few years.

The landscaper’s sad story has been retold by thousands of Americans who have had their property taken by police despite the fact that they were never charged with a crime. Donald Scott was another victim of these laws, killed in his own bed by police hoping to seize his prime California land on the pretext of finding drugs. (The U.S. Department of the Interior wanted the land in the Santa Monica Mountains of California for a wilderness zone.) None were found. Likewise, numerous Hispanic migrant workers who have been paid in cash find themselves relieved of their earnings by police while they travel through Louisiana and Florida on the pretext that perhaps they planned to purchase drugs.

Of course, this is not the first time that government authorities have attempted to circumvent the Constitution. In the 1970s, after numerous cases of alleged figures of the "Mafia" being acquitted murder and other serious crimes, Congress passed the Racketeering Influenced and Corrupt Organizations Act (RICO) which lessened the burden of proof for convicting the "Mafioso’s" in federal courts.

Lawmakers hoped that RICO would allow them to gain more convictions of organized crime figures, and they largely succeeded. However, as in the growth of asset forfeiture, we now find the civil portions of RICO being used not against "organized crime," but rather against abortion protesters and other organizations that do not even resemble the legions of John Gotti. Thus, these legal shortcuts cause greater social crises than the original crimes ever did. No one can say that recreational use of illegal drugs has created constitutional crises, but the laws passed to fight their use certainly have.

Unfortunately, the current protest against racial profiling clouds the larger issue of asset forfeiture. If authorities really wished to end this racial profiling scourge, they would go to the source itself and repeal the laws that give law enforcement authorities a license to steal. Instead, they have allowed their "concern" with the singling out of racial minorities by police to become the beginning and the end of the discussion.

Politicians, eager to please voters, have created even greater potential problems by their rush to prohibit "racial profiling." First, they disguise the real problems which they, themselves, have created. Second, they establish what amounts to racial quotas in law enforcement, which should be obnoxious on their face.

Thus, the greater problem of asset forfeiture continues unmolested. Lawmakers can tell their constituents that they have corrected a major injustice, when, in fact, they have further perpetuated their own lawlessness.

June 29, 2000

William L. Anderson, Ph.D., is assistant professor of economics at North Greenville College in Tigerville, South Carolina. He is an adjunct scholar of the Ludwig von Mises Institute.