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"Profiles," formal and informal, are common in law enforcement, particularly in narcotics law enforcement. They consist of general characteristics and features that might make a law enforcement officer suspicious. In some instances, law enforcement agencies formulate and disseminate formal profiles to officers to guide their investigative actions. Even when profiles are not formally maintained, however, officers inevitably rely on their past experience to generate informal profiles for whom to follow more closely, approach, stop, or question. There is nothing wrong with profiling as a general practice, but when race becomes a factor in a profile, serious constitutional and ethical issues arise.

Racial profiling is the use of racial generalizations or stereotypes as a basis for stopping, searching, or questioning an individual. Racial profiling received a great deal of attention in the United States in the late 1990s as a result of a series of prominent incidents and the release of data on police practices from several jurisdictions. The data consistently showed that African Americans and Hispanics are disproportionately targeted by law enforcement for stops, frisks, and searches. Court records showed, for example, that in Maryland African Americans made up 70 percent of those stopped and searched by the Maryland State Police from January 1995 through December 1997, on a road on which 17.5 percent of the drivers and speeders were African American. A 1999 report by the New Jersey Attorney General found that 77 percent of those stopped and searched on New Jersey highways are African American or Hispanic, even though, according to one expert, only 13.5 percent of the drivers and 15 percent of the speeders on those highways are African American or Hispanic. An Orlando Sentinel analysis of 1,000 videotapes of Florida state trooper traffic stops in 1992 showed that on a road where 5 percent of the drivers were African American or Hispanic, 70 percent of those stopped and 80 percent of those searched by the Florida state police were African American or Hispanic.

Racial targeting need not be expressly invited by a profile. Consider, for example, the U.S. Drug Enforcement Agency's (DEA) drug courier profile for airports. All the factors listed below have been identified by DEA agents in court testimony as part of the DEA's drug courier profile:

arrived late at night
arrived early in the morning
arrived in afternoon
one of first to deplane
one of last to deplane
deplaned in the middle
bought coach ticket
bought first-class ticket
used one-way ticket
use round-trip ticket
paid for ticket with small denomination currency
paid for ticket with large denomination currency
made local telephone call after deplaning
made long-distance telephone call after deplaning
pretended to make telephone call
traveled from New York to Los Angeles
traveled to Houston
carried no luggage
carried brand-new luggage
carried a small bag
carried a medium-sized bag
carried two bulky garment bags
carried two heavy suitcases
carried four pieces of luggage
overly protective of luggage
disassociated self from luggage
traveled alone
traveled with a companion
acted too nervous
acted too calm
made eye contact with officer
avoided making eye contact with officer
wore expensive clothing and gold jewelry
dressed casually
went to restroom after deplaning
walked quickly through airport
walked slowly through airport
walked aimlessly through airport
left airport by taxi
left airport by limousine
left airport by private car
left airport by hotel courtesy van
suspect was Hispanic
suspect was African-American female

Even without the last two factors, this profile describes so many travelers that it does not so much focus an investigation as provide DEA officials a ready-made excuse for stopping whomever they please. A Lexis review of all federal court decisions from January 1, 1990 to August 2, 1995, in which drug courier profiles were used and the race of the suspect was discernible, revealed that of sixty-three such cases, all but three suspects were minorities: thirty-four were African-American, twenty-five were Hispanic, one was Asian, and three were white. While this is not a scientific sampling—it does not include cases in which the race of the suspect could not be discerned, and it does not include cases that did not result in judicial decisions (either because there was no arrest or indictment, or because the defendant pleaded guilty)—the statistics are so one-sided as to raise serious questions about racial targeting.

Although statistical data alone do not conclusively establish that officers are engaged in "racial profiling," they provide strong circumstantial evidence. Many police officers, moreover, admit that all other things being equal, they are more suspicious of, for example, young African-American men than elderly white women. Nor is such thinking irrational. Criminologists generally agree that young African-American men are more likely to commit crime than elderly white women, because at least with respect to some crime, young people commit more crime than old people, men commit more crime than women, and African Americans commit more crime than whites. Indeed, it is precisely because the use of race as a generalization is not irrational that racial profiling is such a widespread phenomenon.

In some areas, however, there is evidence that the use of racial profiles is irrational. The strongest evidence is with respect to drug law enforcement. Much of the racial profiling that occurs on the nation's highways is conducted for drug law enforcement purposes. Officers use the pretext of a traffic infraction to stop a car and then ask for consent to search the car for drugs. This tactic has been expressly approved by the U.S. Supreme Court.

Yet studies show that officers get virtually the same "hit rates" for whites and African Americans when they conduct traffic stops for drugs. In other words, officers are no more likely to find drugs on an African-American driver than a white driver. Consistent with these results, the U.S. Public Health Service has found, based on confidential self-report surveys, that African Americans and whites use illegal drugs in rough proportion to their representation in the population at large. In 1992, for example, 76 percent of illegal drug users were white and 14 percent were African American. Since most users report having purchased drugs from a dealer of the same race, drug dealing is also likely to be fairly evenly represented demographically. Thus, the supposition that African Americans are more likely to be carrying drugs is sharply contradicted by the data.

In any event, even where demographic data suggests that the practice of racial profiling may not be irrational, it is both unconstitutional and unwise. Because of the pernicious history of racial classifications in the United States, the Supreme Court forbids official reliance on racial generalizations—even accurate ones—except when there is no other way to achieve a compelling government end. The usual argument police officers advance in defense of profiling is that it recognizes the unfortunate fact that minorities are more likely than whites to commit crime. But while this may be true with respect to some crimes, the generalizations are hopelessly overinclusive even as to those crimes. The fact that African Americans are more likely than whites to engage in violent crime, for example, does not mean that most African Americans commit violent crime. Most African Americans, like most whites, do not commit any crime; annually, at least 90 percent of African Americans are not arrested for anything. On any given day, the number of innocent African Americans is even higher. In addition, when officers focus on minorities, they lose sight of white criminals. Race is a terribly inaccurate indicator of crime.

Most important, relying on race as a factor for suspicion violates the first principle of criminal law: individual responsibility. The state's authority to take its citizens' liberty, and in extreme cases, lives, turns on the premise that all are equal before the law. Racial generalizations fail to treat people as individuals. As a result, policies that tolerate racial profiling undermine the criminal law's legitimacy. As any good leader knows, and many criminologists have confirmed, legitimacy is central to getting people to follow the rules. If people believe in the legitimacy and fairness of the system, they are much more likely to abide by the rules than if they see the system as unjust. Thus, racial profiling may indeed contribute to crime by corroding the legitimacy of the criminal law.

Efforts to halt racial profiling are now in place in many American jurisdictions. In 1999, President Clinton ordered all federal agencies to study their law enforcement practices to root out racial profiling, and several states and cities—including North Carolina, Connecticut, Florida, Houston, and San Diego—have required reporting on the racial patterns of law enforcement. Such reporting is the first step toward ending the practice, because as long as records of police practices are neither kept nor made public, the nature and extent of the problem will be hidden. The second step requires clear statements by law enforcement officials stipulating that racial profiling is impermissible: Precisely because racial profiling is deeply embedded in the culture and not always irrational, police officers are likely to continue to do it unless the practice is clearly prohibited. And the third step will require effective monitoring and discipline. It remains to be seen whether racial profiling can be halted effectively.