Cracking The Code: Implicit Bias and Racial Profiling

by Jack Glaser

Jack Glaser is a Professor at the Goldman School of Public Policy. He is a social psychologist whose primary research interest is in stereotyping, prejudice, and discrimination. Join Glaser and other Goldman School panelists on Sept. 23 for CALIFORNIA Live! Surreal Politics: How Anxiety About Race, Gender, and Inequality Is Shaping the 2016 Presidential Campaign.

My interest In racial profiling (making judgments about individuals based on traits that are presumed to be prevalent in that individual’s racial, ethnic, gender, or other group) was sparked in 1999 when I read an article by a prominent legal scholar arguing that, while the policy was flawed on Constitutional grounds, it nevertheless represented a rational policing strategy. I was not ready to accept this, and it occurred to me that the very evidence that drove stereotypes associating Blacks with drug crime (the typically profiled crime) was likely to be skewed by profiling itself. To the extent that police were stopping and searching Blacks at a higher rate, they would be arresting and incarcerating them at higher rates.

Like so many policy problems, racial profiling is plagued by a paucity of valid data. I turned to an alternate empirical strategy: simulation, through which I found that even if minorities are offending at a higher rate, profiling exaggerates the disproportions. The only way to get incarceration rates that are proportional to offending rates is to avoid using race as a basis for suspicion. More surprising were the very modest overall gains in criminal captures that resulted from profiling, even when minorities were modeled as offending at much higher rates.

Racial profiling reflects a special case with regard to deterrence. Deterrence theory holds that potential offenders respond to the cost of crime—a function of the probability of apprehension and the punishment that would ensue. When the probability of capture increases, the cost goes up and, according to deterrence theory, people commit fewer crimes. In the case of racial profiling, however, there is not a general increase in the chance of capture, but a group-specific one. Because police departments have finite person-hour resources, when they shift attention to one group, they will shift attention away from another. Because, by definition, there are more people in the majority group, this has the potential to yield a net increase in crime. I call this “reverse deterrence.”

Amy Hackney at Georgia Southern University and I designed a study to manipulate whether GSU students thought Black students, White students, or nobody was being profiled by the proctor during a test. In the control group, cheating rates were reassuringly low. But when White students thought Black students were being singled out, they cheated significantly more. Black students did not cheat more in our “White-profiling” condition. We suspect this is because they do not have a mental schema for Whites being profiled. In this experiment, the net effect of profiling was a higher rate of offending.

The implications of this research are that 1) profiling may not do much to increase criminal incapacitation, even when profiled groups have higher offending rates; and 2) profiling may actually increase the rate of crime.

Some might ask, “Isn’t it only the criminals who need to worry?” No. The disproportionate incarcerations that arise from racially biased policing have dire collateral effects. Police stops and searches are not benign events, even for the innocent. They are potentially stressful, disruptive, humiliating, stigmatizing, and alienating experiences. The disproportionate incarcerations cause losses in income and wealth. After incarceration, criminal records pose lasting barriers to employment, disenfranchise voters, and the cumulative effect of profiling-induced disparities undermines the democratic representation of minority groups. Perhaps most disturbing, incarceration has deadly effects on minority communities. GSPP professors Rucker Johnson and Steve Raphael have shown that incarcerations of Black men explain some of the rate of HIV infection in unincarcerated Black women.

I have yet to meet a constitutional scholar who believes that racial profiling is legally permissible. It violates 4th and 14th Amendment guarantees of due process and equal protection. Yet, the Supreme Court has allowed wide latitude to law enforcement in this area, ruling unambiguously that the Court is indifferent to the actual motivations of officers for stopping drivers and pedestrians, as long as they can articulate a legitimate basis (a valid pretext) for a stop.

Stereotypes serve a “heuristic” (cognitive shortcut) function — they enable us to make reasonably rapid judgments of individuals when we have incomplete information (which is very often the case). But stereotypes tend to be inaccurate. After all, what is the likelihood that you could actually know the exact prevalence of a trait (like criminality) in a group? People also have a tendency to overestimate the similarity of members of other groups (the “they all look alike” phenomenon is very real), causing them to underappreciate the individuality of other-group members. Even if a stereotype was somewhat accurate at the aggregate level, it would tend to produce errors in judgments at the individual level. The very low rates of drug and weapon yields resulting from stops of minorities (in numerous studied locales) — and often lower than those for Whites — reveal that the stereotypes are not contributing much, if any, diagnostic value to the decisions to stop and search. Another dramatic insight from social psychology is that stereotypes are held in, and activated from, memory without conscious awareness or control. This is what is referred to as “implicit stereotyping.” There is now overwhelming evidence that implicit stereotypes influence real behaviors. Consequently, even the most well-intentioned, and consciously egalitarian police officer is likely to be influenced by stereotypes associating minorities with crime.

One obvious method for reducing biased policing is through “de-biasing” trainings meant to discourage the use of stereotypes and increase cultural sensitivity. But there is no evidence that these trainings actually work. We are developing a new, experiential procedure that will use visual stimuli to train officers to avoid using race as a basis for suspicion, and to reward them for appropriate judgments that are based on valid criteria. Finally, I believe the low-hanging fruit in remediating biased policing hangs on the tree of discretion. The Supreme Court has, through its rulings, allowed remarkable leeway to officers in deciding who to stop, question, and search. This discretion, combined with the inherent ambiguity of suspect identification, opens the door to implicit stereotypes. The very small proportions of those searched who turn out to be in violation of the law speaks to the inefficiency to which this level of discretion can give rise. A telling case, relayed by, Malcolm Gladwell, implicates the role of discretion in shoddy law enforcement.

In 1998, when he took over US Customs, Raymond Kelly (now Commissioner of Police for New York City), directed his agents to conduct fewer searches of airline passengers, and to use a much smaller number of indicators of suspicion, those that were more directly associated with smuggling. The result was a 75% decrease in searches, and a dramatic increase in the hit rate (findings of contraband per stop). The net effect was roughly zero on the absolute number of finds — they caught almost as many smugglers with a quarter of the number of searches. Racial and ethnic disparities also declined. They achieved the same effectiveness with far less intrusion on individual and civil liberties.

Ironically, as head of NYPD, Kelly has presided over a dramatic upscaling of the controversial “Stop & Frisk” program. Stop and frisk, in combination with racial stereotypes, results in large numbers of young Black and Latino men being incarcerated for petty drug possession offenses. Customs enforcement and city policing pose very different challenges, and New York in particular is a daunting and complex assignment. Stop and frisk does not absolutely necessitate racial profiling, but because it involves a large number of high discretion stops in public, urban places, it almost invariably does result in racial disproportions. Nevertheless, I will give Kelly the last word, from an earlier time, when he succinctly evaluated racial profiling: “It’s the wrong thing to do, and it’s also ineffective.”

This article was originally published in the Goldman School of Public Policy’s Policy Notes in 2013.
Excerpted with permission.