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The Jewish Ethicist: Racial Profiling I

The Jewish Ethicist: Racial Profiling I

Should law enforcement be color-blind?


Q. What does Jewish tradition say about racial profiling?

A. For years this has been one of the most popular questions to the Jewish Ethicist. I've never related to it because it is such a stumper. On the one hand, there is great ethical detriment to profiling. Yet the benefits can be compelling. Because of the highly complex nature of this question, we will break up the reply into two or more columns.

Profiling involves giving prominent consideration in security searches (law enforcement, airport security, etc.) to characteristics that have no direct connection with wrongdoing. These characteristics are used because they have a statistical correlation with a profile of criminals, terrorists, etc. For example, most crimes are committed by young men; comparatively few are committed by old ladies. So concentrating police searches on young men has a compelling logic. Yet being a young man doesn't cause a person to commit crimes, and I think it is fair to say that most young men are not criminals. Within the category of young men, certain ethnic groups have high rates of involvement in specific categories of wrongdoing, and from a pure law enforcement point of view there is obvious benefit for targeting them for searches, questioning, etc.

But the costs are also great. Let's examine a few:

  • There is certainly an element of inherent unfairness in singling a person out for suspicion because of a trait that is generally harmless.
  • A worse problem is that such treatment can create a stigma for members of particular groups. 
  • Worst of all, such a stigma can actually exacerbate any tendency that a group exhibits to be involved in a particular kind of wrongdoing. It may reinforce a stereotype that a certain type of person is "expected" to be a criminal, a drug user, a terrorist, etc.
  • An additional problem is the "slippery slope": accepting profiling where its use can be legitimated may open the door to institutionalized discrimination and the erosion of civil liberties. Law enforcement could more easily be made into a tool for harassment of innocent minorities.

Of course, some kinds of "profiling" are non-controversial. Everyone expects police presence to be greater in high-crime neighborhoods; this means that members of these areas are more exposed to police scrutiny than people who live elsewhere, though there is nothing suspicious or blameworthy about living in or visiting a dangerous neighborhood. However, it is worth pointing out that in this case the residents of the neighborhood are also most likely to be the beneficiaries of crime prevention. This correlation is not present when profiling is used in a public area such as an airport, where all are equally exposed to danger.

Affirmative action also involves a kind of profiling. A primary objective is to give certain minorities preference in order to make up for a past pattern of discrimination, but individual candidates for preferential admission or hiring are not screened to determine if their particular family was actually the victim of discrimination in the recent or distant past.

The Jewish angle in this week's column relates mainly to the Jewish experience. Next week we will bring a very intriguing source from Jewish tradition.

Jews are very sensitive to the topic of racial profiling because they have often been the victims of this practice. In the worst cases, such as blood libels, Jews have been held responsible for crimes in which they had no involvement whatsoever; Jews have generally been among the least violent social groups. In other cases, Jews have been prejudicially subject to scrutiny; if more Jewish transgressors were found, this was only because they were singled out for examination.

At some times and places, there may also have been some kinds of disapproved behavior which have been disproportionately present among Jews. (In my opinion, these have often been behaviors which in the past were considered reprehensible but today are recognized by many as constructive, such as running black markets in essential goods to relieve shortages.)

The response of Jewish leaders, including great rabbis, has generally been one of responsibility and accountability: if the accusations are false, community leaders have made organized presentations to convince leaders of our innocence. If they have a germ of truth, the Jewish community has sought the authority to deal with the problem themselves. For example, in a certain time and place in the Middle Ages a disproportionate number of Jews seem to have been involved in counterfeiting. As a result, our law responds by justifying far-reaching measures to fight this phenomenon, which was recognized as a threat to the Jewish community as a whole. (1)

I think that this is an excellent model, worthy of emulation. A significant part of the discussion should be at the level of the community, and not only at the level of individual rights. Too much of the dispute about profiling is about statistics and too little is about substance. For example, much has been made of the facts that minority groups seem to be searched more than whites. If the result is that a minority offender is more likely to be caught, and there is a possibility that equal protection of the law is violated, then leaders of a particular ethnic group have a legitimate claim and have every right to demand that procedures be changed. If the underlying problem is that group members actually have a higher involvement in crime, then I think that accountability demands that responsible leaders take the initiative to acknowledge and deal with the problem of wrongdoing in their community - perhaps obviating the need for the state to resort to racial profiling.

SOURCES: (1) Shulchan Arukh Choshen Mishpat 388:12 in Rema; see also Be'er Hagolah Choshen Mishpat 348:5.

If you have a blog or participate in one (or many), please keep current and past Jewish Ethicist columns in mind as an interesting and ready source for thorough and accessible analysis of contemporary ethical dilemmas.

The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.

August 6, 2005

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Visitor Comments: 12

(12) Deborah, June 21, 2017 8:50 AM

A Good Article

The problem with racial profiling is that it can often nullify one's right to be treated fairly under the law. As the author of this article has acknowledged, the practice can exacerbate certain tendencies towards crime, as well as destroying one of the most important bonds in society: that is, the bond between the law-abiding public and law enforcement. So even if there is a trend towards certain types of crime within a certain group (and race is not the only kind of group), we must always operate under the principle that everyone accused of a crime must be given due process, that they must have the right to state and prove their innocence, and they must not be subject to undue harshness or punishment that is not meted out to someone from a different group. This is the essential problem that we are facing today. There are no separate catgeories of criminals simply based on any characteristic: for example, the homicide rate in the African-American community is a monstrosity, but that does not make a black murderer any worse than a white/Asian/Hispanic murderer. Arson and violent gun crimes are mostly committed by white criminals, which does not make them any worse or better than an arsonist or gunman from another race. And certainly there is a tendency to focus on the wrongdoings of one particular race (in America, usually blacks), whilst ignoring the crimes of other races. I think profiling should be rebranded to evidence-based profiling, which focuses on neighbourhoods, rather than characteristics that do not contribute to the crime itself.

(11) Rachel, August 24, 2005 12:00 AM

more on racial profiling and discrimination

Our previous neighbour and her family terrorized us, because of me being of Jewish descent. Ironically, her husband is of Jewish descent to which they have no knowledge-yet I was being attacked and threatened to be burnt out and spitting on my front door amongst other things. We are seeking an injunction against one of the offenders and I intend on going into court wearing my snood proudly. I am not ashamed and I feel part of a larger family. I found my family changed our family name slightly when they were in Poland, but were victims of the holocaust. The racial treatment and the council and polices reluctantance at the time to do something made me feel like I had no right to exist. I expect some racial comment from my former neighbour's daughter in court and I expect justice will be served, as I intend to go in and leave it to G-d. I will retain my faith, despite any remarks. I just wonder if they would attack themselves if they knew thier roots were of Jewish origin. By attacking me, they are attacking part of themselves. I pity them and thier lack of faith. The way I look at it; my family had centuries of persecution and Racial attacks-this is just one more, but one where I will let G-d judge ultimately the outcome.

(10) Martin Cohen, August 18, 2005 12:00 AM

I must correct you. Airports are not legally "Public Places"

It may be important for you to note that, according to the US Courts, airports are not "Public places" in the legal sense of the word. They are "Quasi-Public places." Further, no one has a right to fly, rather it is a mere privelege that may be taken away from a person by the government. This is why I am pro-profiling in airports and anti-profiling on highways. Although driving is also a privelege, the highway is completely public. Further, although driving is considered a legal privelege, it is a necessity for most people while flying is not. For the record, I am an Orthodox Jew. I have olive-colored skin, a beard, and a religious article of clothing on the top of my head when I am at the airport. Due to the nature of my religious studies, sometimes you could find me carrying or reading the Quran in the airport. I would hope that security would stop me everytime and I get very nervous when they don't.

(9) Alek Kirstein, August 16, 2005 12:00 AM

Color blind is not blind


Well put and inspiring with the issue directed toward community responsibility.

Profiling for security seems socially acceptable more readily than other profiling i.e. commercial interests, credit, housing, wherein laws have precedent and included in legislation. Profiling in security creates the same issues addressed in those other prejudiced approaches. It is also directly against the very security interests at hand. Patterns in security leave holes. Ask a hacker. I remember blonde women terrorists in Southern Lebanon. Definitely not fitting the "profile", breeching security until the worst. We have much to learn from Israel's airport security. There it is known any prejudice, even with proven statistical implication, creates blindness to the ultimate task: examination of each and every individual having any access or opportunity for public malice. For the US it s not yet feasible to create the one on one security process Israel uses. Therein our affirmed insecurity. Until we can address fear of individuals with individual security, we will inevitably cross unethical borders in our implementation of public benefit. I hope your message toward community responsibility hits many hearts. For there is no one in government to enforce the most important individual needs. Only communities of like hearted people pushing hardest for what their souls cry out for the most, can move the mountains of government process.

(8) Anonymous, August 12, 2005 12:00 AM

Somewhat disappointing answer

I think the rabbi is a little idealistic about this. I'm a multiracial Jew who has been a victim of racial profiling too many times. Maybe the rabbi needs to ponder this one, I went to the store with two Jewish acquaintences from college. I'm black looking, and the two Jewish kids looked white. The clerks followed me around the store, and ignored the other two kids. I found out later the two Jewish kids shoplifted some items and figured the cops would follow me around and not them. I would like to point out that in our college town, the majority of the offenders of theft are white, and I'm the one being followed. Maybe the rabbi needs to walk into a store looking like me to grow a heart. I'm disappointed in what is usually a good site.

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