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Is Racial Profiling Real?

MR. WATTENBERG: Hello, I’m Ben Wattenberg. From California to Cincinnati to New Jersey, police departments are being confronted with the incendiary charge of racial profiling. But just what is racial profiling? How widespread is it? And does the crusade to abolish it, threaten to undermine law enforcement? To find out, Think Tank is joined by: Heather MacDonald, fellow at The Manhattan Institute and author of The Burden of Bad Ideas: How Modern Intellectuals Mishape Our Society. Paul Butler, professor of law at George Washington University and former prosecutor for the U.S. Department of Justice and David Cole, professor of law at Georgetown University Law Center and author of No Equal Justice: Race and Class in the American Criminal Justice System. The topic before the house: Is racial profiling real? This week on Think Tank.

Reverend Al Sharpton is against it. President George W. Bush is against it. Racial profiling has become a nasty buzz phrase and politicians are scrambling to be seen on the right side of the issue. What everyone exactly means by racial profiling, however, is another matter. Critics of profiling say that cops commonly stop motorists and pedestrians simply because they are black. The practice is illegal they argue, but what’s more, it doesn’t work. They point to studies in New York City and Maryland, showing that police searches were more likely to turn up criminal activity among whites than among blacks. Think Tank panelist Heather MacDonald challenges those assertions. In a recent article in the City Journal, entitled, “The Myth of Racial Profiling,” she writes, “The anti-racial profiling juggernaut must be stopped before it obliterates the crime-fighting gains of the last decade, especially in inner cities.

Lady, gentlemen, thank you for joining us. Heather MacDonald, you wrote that piece in the City Journal entitled, “The Myth of Racial Profiling,” tell us what it’s about.

MS. HEATHER MacDONALD: Well, perhaps mystery would have been a more accurate title, because the fact is is that we simply don’t know whether the police are using race in a biased fashion. There have been statistical studies aplenty that the ACLU and the Justice Department have produced, allegedly showing racial profiling, but Ben, their junk science. They’re not worth the paper that they’re written on.

Racial profiling crusade is the most successful gambit in decades to try and divert attention from perhaps the most intractable social problem we face, which is black on black crime and the anti-police activists are trying to make police racism an irrebutable presumption. Whenever law enforcement statistics show a high rate of minority stops and rests, but the police go where the crime is. The policing revolution of the ‘90s was to make policing data driven. The police aren’t looking for white or black, they’re looking for criminals and they go to the neighborhoods with the highest rates of crime, those tend to be minority neighborhoods. At that point, race is irrelevant.

MR. WATTENBERG: Okay, there she goes again, sugar coating it. Paul Butler, what do you think of that?

MR. PAUL BUTLER: Well, Ben, as a former prosecutor and as an African American man who’s been the victim of racial profiling, I have no doubt that it exists and it’s really troubling, because what we’re really troubling because what we’re really talking about here is stereotypes and law enforcement based on stereotypes and old-fashioned prejudices and it’s been such a problem in the African American community. One of the things that really disturbed me about the article is not hearing anything about the cause and the effect that those kind of discriminatory cause how it—

MR. WATTENBERG: How—you say you were a victim of racial profiling—

MR. BUTLER: Many times.

MR. WATTENBERG: Tell me what happened. Give me an example—

MR. BUTLER: One of many. One time I was walking in my neighborhood in Washington, DC, which is a very nice integrated neighborhood, kind of woodsy, walking home, the police stopped me. I asked why are you stopping me? They said, because we don’t see many people walking in this neighborhood. There are public trails. It’s a woods area. The whole purpose of those woods and trails is for people to walk. So again, I know it happens and every black man, Colin Powell, Tiger Woods, Bryant Gumbel, we’ve all got stories like that.

MR. WATTENBERG: Let’s get David into this and then we will get to vote, David.

MR. DAVID COLE: In terms of the evidence, the evidence is astoundingly one sided, that is, there have now been probably 15-20 studies of racial profiling and every one of them has found that African Americans and Latinos are disproportionately stopped and searched. Most of them are on highways, so Heather’s claim, well, the police are going to the neighborhoods where the crime takes place, that does not in anyway explain the fact that on I-95 in Maryland, where 18 percent of the drivers are black and 18 percent of the speeders are black, 72 percent of those stopped and searched were black.

MR. WATTENBERG: Let me suggest that we spend a small amount of time on the studies, because we get into this phenomenon of dueling studies. Everybody is going to have their own studies—

MR. COLE: There are no dueling studies—

MR. WATTENBERG: I think Heather will argue with that—but let’s do a little bit of studies and then let’s talk about some of the bigger issues. Heather, what do you say? He says the evidence is overwhelming—

MS. MacDONALD: We do have to talk about the studies, though Ben, because ultimately—

MR. WATTENBERG: I understand—

MS. MacDONALD: Because ultimately, you know, there are anecdotes. There’s two types of evidence for racial profiling. There’s the anecdotes and then there’s the statistics and undoubtedly, there are officers in this country who are abusing their discretion and some of the stories are hair raising. Some of them, however, I think are based on misperception. If you talk to an officer today of any race, they’ll say if they pull over a black driver, the first thing out of the driver’s mouth is you only stop me because I’m black. People don’t understand that, in fact, they were violating the law. So the anecdotes don’t you get—get you there. We have to look at the studies and they’re not accurate. David mentions the Maryland study; they don’t look at who is violating the law in the types of ways that draw the police’s attention. You need to know, not only who is speeding at the highest rates, who is on the road at any given time. The highways are incredibly fluid places. The typical study looks at the population of say, Philadelphia, you know, what is the demographic population and compares that to the number of stops, but you need to know who is violating the law. And so nobody’s come out with a proper benchmark and this is not just me speaking, the General Accounting Office which is, I think, regarded as a very non-partisan research organization has concluded that none of the studies to date, support the finding of racial profiling.

MR. WATTENBERG: Paul—Paul had something to say.

MR. COLE: Well, just a little law teaching moment here. Heather first says, well, we really can’t rely on anecdotes and stories and then to support her claim that racial profiling is overstated, she told a story about what police officers tell her is said when they’re stopped—when they stop African Americans and I think that’s not a story that’s very reliable.

The problem I have with conservatives who get so hung up on this is they don’t really ask African Americans what their stories are and what their experiences are with racial profiling, because it really does inhibit. After that it happened to me, Ben, I didn’t want to walk in my neighborhood, a house that I paid a lot of money for. I am an American citizen and I have a right to walk the public streets and I didn’t want to do that and African Americans have stories like that. It also leads to distrust of law enforcement.

MR. WATTENBERG: There was an article—it must have been a year and a half or so or maybe a little longer than that in The New York Times magazine section about this whole issue, particularly on the New Jersey Turnpike, and what I found extremely interesting about it was most of the cops interviewed thought that they were doing their job properly and the author made a point of saying that both black cops and white cops thought the same way. So if a black cop is making what you would claim to be an inordinate number of black arrests, is he a racist?

MR. BUTLER: I don’t think it’s about racism. I think it’s about people being wrong what the profiles suggest. The profiles simply are inefficient law enforcement and again, as a former prosecutor, someone who is very concerned about safe streets and public safety, I want police to be efficient—

MR. WATTENBERG: I mean, Heather’s point is that cops, black or white, go to where the crime is. You do have—I don’t have the exact number at my fingertips, but roughly speaking, the black rate of violent crime in America is about five times disproportionate their rate in the population. So wouldn’t a cop, black or white, and I will certainly grant you that a lot of innocent people suffer from that, but isn’t a cop, black or white, whose job is to go after and find the crime, isn’t he acting in a rational manner to look with more scrutiny at someone who fits the “profile?”

MS. MacDONALD: Ben, I’m not—

MR. BUTLER: First of all the driver—

MS. MacDONALD: Ben, I’m not willing—

MR. WATTENBERG: I’m in this also, Heather, just hold on—

MR. BUTLER: The driving while black stops are really designed to get drugs and drugs are a crime that we know from the Department of Justice, African Americans and Hispanics do not disproportionately—

MR. WATTENBERG: We’re not talking about use, we’re talking about—now it’s Heather’s turn, hold on a minute.


MR. WATTENBERG: Let’s make believe I’m the moderator, okay? Just as a game. Now, you go and then you go and then go ahead.

MS. MacDONALD: There’s independent evidence confirming that the police are arresting the people that are dealing in drugs. If you look at homicides committed during drug turf war battles, 65 percent of the perpetrators and 65 percent, approximately, of the victims are black. This tracks the 60 percent of prisoners in state prisons who are in there for drug trafficking offenses. If the police were ignoring vast amounts of white dealers who are out there, presumably we would find white homicides at the same rate. There was a case that went up to the Supreme Court, U.S. v. Armstrong in ‘96 that was a selective prosecution case out of LA, the defendants claimed that the U.S. Attorney was only going after black drug lords and was ignoring all of the white cocaine traffickers. And to get into federal court, you needed to be heavy-duty drug trafficker. They found that less than one percent of the white defendants who came before them met the federal guidelines.

MR. COLE: First of all, when Heather says the real problem here is this racial profiling juggernaut is going to undermine law enforcement. Look what happened with customs—

MR. WATTENBERG: That’s what I want to talk about, because that’s really important.

MR. COLE: Okay, and that’s why I want to—

MR. WATTENBERG: Because and let me tell you why I want to get there. Because we mentioned this disproportionate rate of black violent crime. The corollary to that is the really tragic part, which is that blacks are far more likely to be victimized by crime. So what Heather is talking about if I may put words in her mouth and you just alluded to it, is a central strategy, is are we going to diminish crime in this country which is disproportionately hurting blacks, eroding inner cities, destroying economies. We seem to be doing something—have done something right in the ‘90s and so I’d like to talk about that.

MR. COLE: First of all, you can’t equate violent crime with all crime. When police stop a speeder on the highway and ask for consent to search his car, there not looking for a murderer or a robber, they’re looking for a drug dealer or a drug carrier, that’s what—they’re not going to find evidence of a murder, they’re going to find evidence that this person is carrying contraband. So that’s what’s driving racial profiling—

MR. WATTENBERG: Which will end up in the hands of children? I mean, there—

MR. COLE: No, drug dealers—

MR. WATTENBERG: They’re drug dealers—

MR. COLE: Drugs are a source, there’s no doubt about it—

MR. WATTENBERG: They’re bad guys—

MR. COLE: The question is if you have—if you sort of draw from a disparity with respect to violent crime and use that as a stereotype in general as about all kinds of crime, that’s a problem. Secondly, in terms of undermining law enforcement, look what customs did. Customs was engaging in racial profiling and what they were finding is they were stopping blacks and Latinos at vastly disproportionate rates to whites. They were finding drugs or other contraband on 6 percent of the whites, 6 percent of the blacks and 2 percent of the Latinos. That was in 1998, all right. Then they got a lot of heat for their profiling and so they adopted a whole sets of magnamisms, designed to train their officers not to profile, not to use race, to look for better criteria for stopping. What happened? The numbers of stops was cut in half. The number of searches of all people coming in was cut in half. The hit rates doubled for blacks and whites, it went up by 5 times for Latinos and they did not decrease in anyway, in fact, they increased their stops of—seizures of heroin, cocaine and methamphetamines. So you’re talking about an agency which is engaged in very serious law enforcement which abandons racial profiling and finds, lo and behold, if they don’t rely on race, they’re using better criteria, they stop fewer innocent people, they find more drugs. Now that’s what we ought to be doing across the board.

MS. MacDONALD: I want to take up the issue of the victims of crime, both drug crime and violent crime. But first I have to respond to David’s point that the comparable hit rate shows that, number one, the police are profiling and number two, that they are unfairly targeting blacks. In fact, the fact that the hit rate has been basically identical, there’s been only one study—

MR. WATTENBERG: What does the hit rate mean, it means a successful apprehension—

MS. MacDONALD: It means that for all of the—they find contraband meaning drugs or weapons on 30 percent let’s say in Maryland, 30 percent of the black drivers that they searched and 30 percent of the white drivers that they searched. That shows that the police are not using race, they are going after dealers. The police have lots of non-racial queues to work with.

MR. BUTLER: First of all, I don’t hear any responsible person saying that the police don’t use race as one of their means of suspicion and really where the majority of the debate is now, the mainstream debate is whether they should, whether it makes sense. Some police say they do and it makes sense and they’re not racist, they think it helps their law enforcement and what civil rights organizations have been really successful at doing is persuading people that it’s bad law enforcement. You sure can’t rely on arrest rates because, gee, you know, look, there is a relationship between looking for things and finding things and so it becomes a self-fulfilling prophecy if you only look at African American that you end up with more African Americans who are under arrest.

MS. MacDONALD: Not in violent crime—

MR. BUTLER: The reason why it’s bad—

MR. WATTENBERG: Hold on, Heather—

MR. BUTLER: The reason why it’s bad—law enforcement is because, again, this is another experience that every African American has had. They follow around the store—security guard—

MR. WATTENBERG: Right. That’s the issue I want to get to—

MR. BUTLER: Because they think that you’re stealing and you’re not, meanwhile, there are white people who are robbing the store blind, because African Americans are getting the attention of law enforcement. So when black people say; we want safe streets and at the same time, they complain about racial profiling, they’re not dumb people who don’t know what’s in their own interest. They know that when the police are hung up on, oh there’s a Dominican in a Jaguar, oh there’s a black man in a Pathfinder, that that’s not making their streets any safer.

MR. WATTENBERG: Hold on. Hang on, Heather—

MS. MacDONALD: Blacks in New York City—

MR. WATTENBERG: Heather, everybody, you got to follow the leader because we have three very passionate people and we’re all going to be heard from. Paul, I want to open this up to something that you brought up and that Heather talks about in her article. She recites some meetings that she was at in black neighborhoods with in one case, Mayor Giuliani in New York and another case with police officers, I guess and this drumbeat demand from the black community, more cops, you wouldn’t allow this drug dealing going on in a white neighborhood. You are not paying enough attention to us. We need the law and order, more cops. And as you know, there is—for just a reason we talked about earlier, blacks are the victims of these things as well as their kids who are getting hooked. Now, is that an accurate portrayal insofar as one can generalize of attitudes in the black community that they’re saying we are underpoliced?

MR. BUTLER: I think it is—I think it’s ultimately a very Republican way of thinking. It’s a critique of big government and the way it works. There’s too many police, too much government doing the wrong thing in African-American neighborhoods.

MR. WATTENBERG: Do you think that the so-called Giuliani program in the course of the ‘90s in New York was just—has been sort of one the models—has worked? Is that what’s responsible, that’s not responsible for the drop in crime in New York? You had a 65 percent drop in homicides in New York.

MR. COLE: Right.

MR. WATTENBERG: I mean, something went on.

MR. COLE: What Giuliani it was yes, you can respond to crime by sending in lots of cops, stopping and frisking every other black—young black man, arresting lots of them. That’s a way—just like sending tanks into the streets is a way to respond to crime. But is it a long-term effective strategy? No. What I’m in favor is social interventions that reduce crime. Now, I think one wrong way of thinking about it is more cops and more prisons or more crime. I think there are lots of ways that one could invest in communities that would reduce the crime rate, like providing more job training. Providing better education. Providing better infrastructure. Many people don’t crime out of some—

MR. WATTENBERG: But excuse me, excuse me, because I worked in President Johnson’s administration and we had 30 years of solid increases in all of those things and at the same time that we had the increase in all of those social interventions, we had a dramatic and ugly rise in violent crime in America. So to say that it’s because we didn’t do those things—you get crime, they happen simultaneously, it’s a very tragic fact, certainly for liberals—

MR. COLE: You walk in any of these high crime neighborhoods and you will see that maybe Lyndon Johnson was putting a lot of money in there, but I don’t see any signs of it. I don’t see—it’s—they are hopeless basis.

MR. WATTENBERG: I want to follow up something else that Paul said, because this is really the root of it or much of the root of it is is this feeling in the black community and I think that’s what Bush is responding to and it plays itself out in a hundred different ways, like the Florida view and the O. J. Simpson view, there’s a whole attitudinal disconnect between the white and black communities.

Now, I want to ask a question which is this: One of the classic stories you hear from black men, the one—I’ve been on several programs about it, they, you know, I’m a guy in a suit, I try to hail a cab, I can’t get a cab. The guy next to me is white. He’s wearing a suit. His tie. He tries to hail a cab, he gets a cab. I know what’s going on, but what happens when you have a situation, which is, I believe, true, when black cab drivers behave the same way that white cab drivers do and they pass up blacks for whites. What is—how do you deal with that?

MR. BUTLER: Black people can be victims of stereotypes—

MR. WATTENBERG: No, no, I understand, but it just makes this issue much more complex—


MR. WATTENBERG: That’s all I’m trying to say.

MR. BUTLER: Well, what it does that’s helpful is it underscores that it’s ultimately not about racism per se.

MR. COLE: I don’t think any of us believe that racial profiling that has been shown in study after study in all sorts of various jurisdictions is driven by old fashioned racist cops. I mean, that’s kind of a ridiculous notion. I mean, The New York Times magazine article that you referred to earlier, reflected this. Those cops admitted to profiling. They said, you know, yeah—they were doing because they hated blacks and they’d even get up in the morning and say, I want to stop a black person today. They got up in the morning, saying, I want to find crime. I want to stop and deter crime. I want to make the streets safer and I assume all of the things being equal, that a black person is more likely to be committing crime that a white person. And I operate on that assumption.

Now, it’s that—and all of us operate on that assumption.

MR. WATTENBERG: I mean, that’s what Jesse Jackson said in his famous quote, he said, “When I look over my shoulder and I see a white guy, I relax.” So—

MR. COLE: So it’s a stereotype that infects the culture and that’s what makes it so difficult to extricate, but—

MR. WATTENBERG: I’m going to ask one other question, one, two, three. I need a brief answer because we are out time. This is a fascinating argument and issue, I must say that. Briefly, what is the upshot of it going to be? What’s going to happen?

MR. COLE: I think the upshot is you’re going to see more and more states requiring that we keep data on stops and on law enforcement to bring the hidden discrimination, which leads to the reliance on stereotypes to light. And once we bring that to light, I think we can begin to respond to the problem, which is stereotyped policing.


MR. BUTLER: I think it’s going to lead to a smarter policing, because again, Heather is way out of the mainstream on this issue, even again, conservatives understand that racial profiling exists and that it’s wrong and that it’s poor public policy and that it’s un-American. And again, the way that police officers do their job the best, is when they work with the community, when they listen to the views of the people in the community, including the majority of African Americans who believe—understand their reality that racial profiling exists and that it’s wrong.

MR. WATTENBERG: Okay. The only thing I would object to is the phrase, even conservatives—but that’s my personal problem.

Heather, you get the last shot. What’s the upshot of it going to be?

MS. MacDONALD: David is right; we’re going to see more data collection. It’s going to be mandated. Nobody has figured out a proper way to figure out a benchmark, the denominator to compare the stop rates to. What this is going to allegedly show is disproportionate minority stops. The elites are going to tell officers if you’re stopping more minorities than whites, it’s because you’re racist and we’re going to target you as racist and you’re going to see police backing off or arresting by quota as Mr. Butler as himself suggested, this is already happening in Pittsburgh, where they’re under consent decree and every officer stops are monitored by race.

MR. WATTENBERG: Okay. Thank you, Paul Butler, Heather McDonald, David Cole and thank you. Please remember, send us your comments via email. For Think Tank, I’m Ben Wattenberg.

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