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Ethical Profiling

Article  in  The Journal of Ethics · June 2011

DOI: 10.1007/s10892-010-9092-9

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Metadata of the article that will be visualized in OnlineFirst
ArticleTitle Ethical Profiling
Article Sub-Title
Article CopyRight Springer Science+Business Media B.V.
(This will be the copyright line in the final PDF)
Journal Name The Journal of Ethics
Corresponding Author Family Name Boylan
Particle
Given Name Michael
Suffix
Division
Organization Marymount University
Address Arlington, VA, USA
Email michael.boylan@marymount.edu

Received 1 September 2010

Schedule Revised
Accepted 1 October 2010
Abstract This essay will argue for ethical procedures governing criminal profiling. A model based upon psychological/
behavioral data, witness data, and forensic profiling data is sketched out. This model fits the legitimate uses
of criminal profiling as an investigation procedure. Racial profiling as a primary sorting factor does not fit
the preferred model and has significant downsides and so is rejected as a primary sorting mechanism in
criminal investigation procedure.
Keywords (separated by '-') Criminal profiling - Forensic profiling - Professional ethics - Psychological profiling - Racial profiling
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 J Ethics
DOI 10.1007/s10892-010-9092-9
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1

3 Ethical Profiling
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4 Michael Boylan

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5 Received: 1 September 2010 / Accepted: 1 October 2010

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6 Ó Springer Science+Business Media B.V. 2010

7 Abstract This essay will argue for ethical procedures governing criminal profil-
8 ing. A model based upon psychological/behavioral data, witness data, and forensic
9 profiling data is sketched out. This model fits the legitimate uses of criminal pro-
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10 filing as an investigation procedure. Racial profiling as a primary sorting factor does
11 not fit the preferred model and has significant downsides and so is rejected as a
12 primary sorting mechanism in criminal investigation procedure.
13
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14 Keywords Criminal profiling
Forensic profiling
Professional ethics

15 Psychological profiling
Racial profiling

16
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17 Over the past couple decades few issues have been so socially controversial as racial
18 profiling as a criminal investigation procedure. From investigations in Baton Rouge,
19 LA to Charlottesville, VA to the controversial policies on targeting drivers on the
20 New Jersey Turnpike, racial profiling involving African Americans has been viewed
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21 by many (including this author) as an unjustified instance of racism (Boylan 2008).

22 From the bombing of the Mura Office Building in Oklahoma to the attacks of
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23 September 11th 2001 to the ongoing defense of our country against terrorism, the
24 use of racial profiling has been very controversial. Finally, in April 2010 the
25 Republican legislature in the state of Arizona has passed a bill that requires police to
26 approach and question those who reach the level of reasonable suspicion as to their
27 immigration status. Since the state borders on Mexico, the principal intent is to
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28 roundup and return Mexican and Central American undocumented individuals to

29 their country of origin. Many believe that this law will encourage racial profiling by

A1 M. Boylan (&)
A2 Marymount University, Arlington, VA, USA
A3 e-mail: michael.boylan@marymount.edu

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30 police in Arizona to assume that anyone looking Hispanic is guilty until proven
31 innocent.
32 As the above examples demonstrate, racial profiling as a criminal investigation
33 procedure exists and is very controversial. Is racial profiling justified? How should
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34 we think about profiling as a part of the portfolio of a detective? These are some of
35 the questions that are at the heart of this essay. In order to get there, we need to
36 stabilize our vocabulary and set out a model of criminal profiling in order to

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37 ascertain whether race should ever constitute primary criminal evidence in an
38 ongoing criminal investigation.

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39 Basic Definitions To avoid confusion let us agree to some fundamental
40 definitions.
41 Crime Crime in the context of this essay will refer to breeches in the national,
42 state, or local legal statues. It also includes acts of mass violence for the purposes

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43 of inciting terror (though this is controversial—Palmer-Fernández 2011).
44 Criminal Evidence Criminal evidence is of two sorts: primary and secondary
45 factors. Primary criminal evidence is a narrow sorting device that concerns
46 evidence that is most effective at identifying or contributing to a profile of the
47 perpetrator of the crime as an individual. Primary criminal evidence is of the
48 quality that can lead to an arrest: probable cause. Secondary criminal evidence is
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49 a broader sorting device that concerns evidence that is generally used to eliminate
50 classes of suspects from the population of people of interest. Secondary criminal
51 evidence is not of the quality that it can lead to an arrest.
52 Criminal Profiling Criminal profiling is the reconstruction of the crime and the
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53 crime scene in order to ascertain who did what to whom—when and why.
54 Criminal profiling is generally of three classes: psychological or behavioral
55 profiling, forensic profiling, witness profiling. Each of these can be used in
56 predictive and retrodictive discovery.
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57 Crime Scene Refers to the action description of the crime as it occurred: all the
58 individuals involved, what happened, where it happened, and why it happened.
59 Forensic Profiling Forensic profiling is the acquisition and evaluation of physical
60 evidence in the light of modern scientific techniques of analysis for the purposes
61 of predictive discovery.
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62 Predictive Discovery Predictive reconstruction of the crime scene after the fact
63 but before there is enough information for a warrant of arrest.
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64 Psychological/Behavioral Profiling Psychological/behavioral profiling is the

65 creation of either a general worldview depiction of a type of person who might
66 commit some sort of crime (not advocated in this essay) or a narrow worldview
67 sketch that relies heavily upon forensic profiling and witness profiling in order to
68 recognize the token (advocated in this essay). Psychological/behavioral profiling
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69 can be used in both predictive and retrodictive discovery.

70 Retrodictive Discovery Post-arrest reconstruction of the crime scene and the
71 events that led up to it. This sort of discovery occurs before trial in order to
72 determine the mental state of the accused, mens rea.
73 Witness Profiling Witness profiling is the critical evaluation of eyewitness
74 testimony in order to engage in predictive discovery.

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 Ethical Profiling

Fig. 1 Target approach to

profiling. Bull’s eye = Victim;
First ring = Victim’s family;
Second ring = Victim’s work/
community/churchcompanions;
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Third ring = Victim’s new

acquaintances; Forth
ring = Random Strangers

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75 1 A Model of Ethical Criminal Profiling

76 In the best situation the following is the accepted method used in the United States
77 for a criminal investigation. It all begins when a victim comes forward or when a
78 witness (after the fact) declares that a crime has been committed. The following is a
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79 quick guide to how the three legitimate forms of criminal profiling work in the best
80 circumstances. Before this brief examination of the phases of the criminal
81 investigation, let us set out a foundational principle in criminal investigation: most
82 crimes are committed against someone who the perpetrator knows. In order properly
83 to go through the preferred model of profiling, let us visualize these phases like a
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84 standard target with concentric circles (Fig. 1).

85 Phase 1: Determine whether a crime has been committed. Secure the crime scene
86 and the witnesses in order to determine this. For example, several years ago a TWA
87 plane blew up at Kennedy International Airport. Was this an act of international
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88 terrorism? No, a faulty ignition spark caused the explosion. Thus, there was no
89 crime committed. There have been many instances of what seems like a natural
90 event—such as the death of an elderly person of wealth turned out to be a crime.
91 This may be discovered through an examination of the crime scene: e.g., powerful
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92 motives to move the estate into probate, further investigation may reveal that a
93 crime has been committed.
94 Phase 2: If a crime has been committed, then which crime is it? For example, in
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95 1994 Susan Smith said a Black Man killed her children. This is sometimes term
96 racial hoax (Welch 2007). For the hoax to work it depends upon there being a
97 socially constructed general image of the young black criminal predator—such
98 constructed images lie at the heart of racial profiling.)1 Instead, it was determined
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99 that Susan Smith killed her own children.

100 Another instance of trying to ascertain the sort of crime committed is the
101 bombing of the Mura Office Building in Oklahoma. Determining the nature of the
102 crime proved to be a difficult task. Was it terrorism? If so, was it foreign terrorism?
1
1FL01 Of course there are other socially constructed racial stereotypes as well—such as the rabid Islamic
1FL02 extremist. As will be shown later in this essay such stereotypes have vague connection to some empirical
1FL03 data, but the conclusions are not supported by inductive logic.

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103 Was there a particular party being targeted and the general blast used to cover up the
104 real target? Was it a revenge crime of someone who had worked at the building but
105 was fired? There were certainly a number of possibilities.
106 One way to get a good foundation for this phase of profiling is to begin with the
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107 victim and the risk level he/she was willing to accommodate in his/her lives. This is
108 often called victim risk (Douglas et al. 1986). At one end of the spectrum one might
109 set people who will associate with virtually anyone—drug addicts, the homeless,

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110 prostitutes, et al. At the other end are those who consciously sequester themselves—
111 the wealthy and powerful. Lifestyle has an effect on becoming a victim (due to

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112 probability and risk).
113 Offender risk is also an important part of a criminal profile (Napier and Baker
114 2005). Those who abduct in broad daylight in a crowded city setting, for example,
115 are very likely to be caught. This is very risky behavior. Low risk behavior requires
116 planning and stealth.

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117 There are other sorts of pieces to the puzzle such as serial criminals who escalate
118 their behavior on successive criminal acts (Douglas and Munn 1992). The staging of
119 a crime scene is sometimes carefully constructed to misdirect the investigation of
120 physical evidence (Douglas and Munn 1992). Time and location of when the
121 perpetrator spent time with victim can also be crucial (Douglas and Munn 1992).
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122 The modus operandi signature of the crime can connect separate incidents together
123 (Douglas and Munn 1992). The personality of the crime scene: how the crime looks
124 to investigators also gives a hint as to the worldview of the perpetrator (Hazelwood
125 and Warren 2003).
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126 The above criteria can give good evidence as to whose crime it is via the personal
127 identity of the perpetrator through questions about both the victim and the offender.
128 However, there are still gaps. These require us to move to the next phase.
129 Phase 3: Create the criminal profile. There are at least three-parts that go into a
130 criminal profile: the psychological/behavioral profile, the witness profile, and the
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131 physical evidence (forensic) profile. The overall criminal profile is created
132 interactively in the same time period. One begins with the victim. In our bull’s
133 eye diagram above, this is the very center of the target. Why was this person a
134 victim? What elevated her to this status? Since most crimes are not random, the
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135 standard procedure is to move outward in concentric circles from the victim to
136 family members, people around her, lovers, friends, co-workers, and finally
137 strangers (at the outside).
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138 The ideal case to illustrate this process is the 1950s New York City case of the
139 Mad Bomber. In the mid-50s the city was terrorized by a series of bombs that went
140 off at various landmarks such as Grand Central Station, Radio City Music Hall, as
141 well as theaters and libraries (Schlesinger 2009). Because the Mad Bomber was very
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142 meticulous in his planning and the cases went unresolved for 16 years. The New
143 York City Police Department then consulted psychiatrist James Brussel to create a
144 criminal profile of the perpetrator. Brussel brought in all the physical evidence
145 available for a forensic profile that gave an empirical basis for his subsequent
146 psychological profile. After viewing the evidence Brussel concluded that the suspect
147 was of Eastern European descent, over 40, lived with an aunt or sister, had a serious

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148 illness, attended church, and was soft-spoken and polite. As a result the New York
149 Times ran the following on Christmas, 1968.
150 Look for a heavy man. Middle age. Foreign born. Roman Catholic. Single.
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151 Lives with brother or sister. When you find him, chances are he’ll be wearing a
152 buttoned double-breasted suit. Buttoned. (Brussel 1968)
153 The profile allowed police to narrow their search to George Metesky, a former

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154 disgruntled Con Edison worker. Brussel’s profile was amazingly accurate down to
155 the buttoned double-breasted suit. This was really the beginning of scientific

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156 criminal profiling in America.2
157 However, criminal profiling is not an easy process. Greg McCrary, a former field
158 agent for the FBI, told me of one case he worked on in New York City. It was an
159 apartment building that had a predominantly Jewish clientele. An elderly woman
160 was murdered and found on the stairwell. She was taken to the morgue and

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161 autopsied. In the autopsy some hair samples were identified as being from an
162 African American under 60 (the age most men turn gray). This physical finding led
163 to creating a forensic profile of the killer that he was an African American aged
164 15–60 with some access to the building. As detectives were gathering those who had
165 opportunity and fit the forensic profile, it was discovered that the body bag was one
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166 that had been used in an earlier case and not discarded. The hairs found on the body
167 were from the contaminated body bag. The police had to start all over again
168 beginning with the victim and the chart of acquaintances. By looking at the
169 circumstances of the crime scene and the circle of those who knew her a
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170 psychological/behavioral profile was created that eventually led to an arrest.

171 In another case that McCrary worked in Atlanta concerned a series of child
172 murders within the African American community. This community was very
173 racially stressed. They were reacting to what they saw as severe racial backlash
174 against civil rights. The shared community worldview was that a racist white man
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175 had committed the crime. This was a clear case of racial profiling by the
176 community. It deleteriously affected what potential eyewitnesses said (because it
177 altered their perceived reconstruction according to what they expected to see) and
178 the given psychological/behavioral profile that was being developed was also
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179 skewed improperly. Unfortunately, there was no physical evidence that would
180 pinpoint anyone. In this instance profiling did not work. It was only by working the
181 bulls eye approach that the serial killer, a black man living in the community, was
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182 apprehended through traditional means, motive, and opportunity criteria of someone
183 within the scope of acquaintances.
184 A final example in this category also came from McCrary’s work in Rhode
185 Island. There was a murder in a neighborhood that was 90% white Roman Catholic.
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186 Because most of the neighborhood was white, investigators began with a racial
187 profile assumption that the murderer was also white. But this assumption poisoned
188 the legitimate profiling process just as it had in Atlanta. The murderer was one of

2
2FL01 Of course the ideal of the criminal profiler who uses physical evidence and witnesses testimony (when
2FL02 available) to construct a psychological/behavioral model of the perpetrator first appeared in fiction
2FL03 through characters such as Sherlock Holmes and Hercule Poirot. Sometimes real life follows art.

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189 only a handful of African Americans living in the area. He was apprehended via the
190 bull’s eye approach: he knew the victim and had business dealings with him. When
191 this individual became a person of interest, forensic evidence led to a profile that
192 resulted in an arrest warrant.
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193 Phase 3 is all about creating criminal profiles: psychological/behavioral profile,

194 the witness profile, and the physical evidence (forensic) profile. Sometimes these are
195 effective and sometimes not. The most reliable input, for the most part, is the

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196 physical evidence. But the physical evidence does not speak for itself, it must be
197 interpreted within the context of the profile.

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198 The least reliable part of the process is eyewitness testimony (including spon-
199 taneous confessions). This may seem counterintuitive since eyewitnesses were there
200 and saw everything. However, there are mitigating factors such as the trauma of the
201 event itself. Posttraumatic stress disorder can occur in various degrees especially to
202 victims of violent crimes. It can cause memory errors based upon the witness or

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203 victim’s own personal worldview (a capacity that tries to make sense of what happens
204 in life). Large cognitive dissonance on the part of various parties in a crime may
205 contradict the records of video surveillance cameras (the best sort of eye witness).
206 There is also the phenomenon of false confession. This is most prevalent in cases in
207 which there is wide publicity about the crime committed.
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208 A well-agreed upon set of general profiling basics follows Douglas et al. (1986)3:
209 (a) input: collecting crime scene information
210 (b) decision process: arranging the input into meaningful patterns and analyzing
211 victim and offender risk
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212 (c) crime assessment: reconstructing the crime and the offender motivation
213 (d) criminal profile: developing these specific descriptions of the offender
214 (Douglas et al. 1992)
215 (e) Investigation: using the profile as an aid or adjunct in investigation
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216 (f) Apprehension: checking the accuracy and the description against new
217 information that emerges in the investigation and changing the profile
218 accordingly.
219 These are important categories and there was much overlap in my discussions
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220 with practitioners of profiling.

221 Phase 4: Go to the prosecuting attorney with a written avadavat to apply for a
222 warrant of arrest. At this stage the completed predictive discovery profile containing
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223 input from witnesses, psychological/behavioral assessment, and physical evidence

224 undergoes careful scrutiny before being presented to the judge who may issue the
225 warrant of arrest.
226 Phase 5: Arrest the suspect and turn him over to forensic psychologists to engage
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227 in retrodictive profiling. This is an area that should not be ignored in profiling. In
228 discussions with Mary Lindahl, a forensic psychologist, on this phase of criminal
229 profiling I found that the retrodictive discovery phase is similar, but different from
230 the predictive discovery phase. In the retrodictive discovery phase, the profiler is

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3FL01 cf. also to Schlesinger (2009), Kocsis (2006), and Rossmo (2000).

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231 confronted with an established case against the defendant. It has met the probable
232 cause standard and the district attorney believes that she can prove beyond a
233 reasonable doubt that the defendant is guilty. Most people who get to this stage
234 really are guilty. But as we know going back to at least Thomas Aquinas, there are
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235 two modes of retributive justice: first order (proving that x actually did y to z) and
236 the second order (how culpable was x) (Boylan 2004). The forensic psychologist’s
237 role in retrodictive discovery is primarily the latter (but as an officer of the court

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238 she is also bound to convey evidence [psychological profiling] that might be
239 exculpatory (first order).

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240 When Lindahl worked on the unabomber case, there were some real questions
241 about the mens rea of Ted Kaczynski. Dr. Lindahl had to determine whether he was
242 sane enough for trial and if there were any mental capacity issues that might
243 properly be raised in court. This required not only discussions with the defendant,
244 but his mother and brother (who were the ones who turned him in). Dr. Lindahl

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245 utilized conventional psychological methods to make professional judgments both
246 in her role as a forensic psychologist (and a prudent and reasonable practitioner in
247 her discipline) and as an officer of the court enforcing legal standards. There are
248 sometimes instances in which the two professional roles conflict. This is a true
249 ethical dilemma. When these situations occur, Lindahl is obliged to present the
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250 dilemma to the presiding judge for advisement.
251 In other cases it is important to make judgments about causation. For example, in
252 the Washington DC sniper killings an elder man, John Allen Muhammad, was
253 traveling with a much younger accomplice and triggerman, Lee Boyd Malvo. Was
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254 there coercion involved by Muhammad that might mitigate Malvo’s actions? This is
255 the sort of question that physical evidence alone or witnesses alone could not
256 answer: enter Dr. Lindahl and the retrodictive discovery profile.4
257 In this section, a model of criminal profiling has been sketched out. For the most
258 part the section has concentrated upon predictive discovery profiling using the input
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259 of psychology/behavioral data, physical evidence, and witnesses. These inputs are
260 merged together for the sake of seeking factors of individuation. When we look at a
261 fingerprint, we are not as interested in the type of fingerprint class it represents but
262 rather the individual who possesses the unique print. Or in a DNA sample, a
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263 phylogenic analysis is less interesting than individuating aspects of information (and
264 the capacity for this improves almost monthly—Soares 2010). And finally with
265 witnesses, finding out that the defendant is tall is far less valuable than finding out
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266 that he has a scar on his left cheek. So what lies behind this basic model is that
267 criminal profiling predictively and retrodictively should be about what philosophers
268 call token analysis (emphasis upon the individual) as opposed to type analysis
269 (emphasis upon the various abstract classes). The former fulfills the mission and is
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270 ethical while the latter does not and is not.

4
4FL01 For the sake of completeness, let me report that any coercion on Malvo was held to be within his power
4FL02 reasonably to withstand. Thus, his sentence was not affected.

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271 2 The Debate on Criminal Profiling

272 The utility of criminal profiling is not universally agreed upon. Criminologist and
273 former police detective Michael Bolton told me that he thought criminal profiling
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274 was just smoke and mirrors. In a 2004 study Richard Kocsis set up an experimental
275 mock criminal situation that was evaluated by professional profilers, police
276 detectives, psychologists, college sophomores majoring in science, and psychics.

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277 The point was to see which group would perform the best. The professional profilers
278 did the best with the college science students and psychologists a close second.

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279 Police detectives were next and the psychics were the worst. Kocsis concluded that
280 experience in critical thinking was the key for the higher performing groups. In fact
281 he and a co-author set out methodological procedures in textbook detail (Palermo
282 and Kocsis 2005—especially part 3). Those profiles that seek particularity rather
283 than a general schema work the best say Palermo and Kocsis. This can only occur

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284 when crime scene analysis leads the profile (Palermo and Kocsis 2005—part 2).
285 Mere psychological speculation alone leads to generalizations that are often of little
286 value.
287 Several authors have made this sort of point about specificity. For example,
288 Grimland et al. (2006) argue that the political motivations and tactics of certain
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289 terrorists are more useful for solving the crime than psychological analysis of types.
290 Understanding the uniqueness of various war contexts is a better tool because it is
291 more specific.
292 Another attack against type criminal profiling comes from Wolf and Lavezzi
293 (2007) concerning the profiling of serial killers. Wolf and Lavezzi contend that
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294 among serial killers there is no effective general profile. Therefore, criminal
295 profiling based upon generalized models is (at least in the case of serial killers) a
296 flawed tool.
297 Again Torres et al. (2006) examine what psychologists think about generalized
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298 profiling. Fewer than 25% thought it was scientifically reliable—though a majority
299 supported continued research that relied heavily upon physical evidence to give it
300 specificity. Only when generalized behavioral models were particularized in this
301 way should (the authors contend) such evidence be admissible in court. This is
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302 developed further by Snook et al. (2010) as they criticize the theoretical grounding
303 of criminal profiling and view it as largely ineffective and based upon anecdotal
304 success stories.
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305 Most of the critics of profiling are of this sort. They see profiling based upon
306 generalized patterns with no concrete individuating factors to be of low value and
307 more the tools of psychics than criminal science. Laurence Alison (2005) offers a
308 large review of this debate. However, when the structure of the discussion turns to
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309 how a profile is grounded in crime scene data and witness data (to individuate the
310 profile), the critics either support it or think that such an interdisciplinary approach
311 is promising when combined with other physical evidence such as DNA evidence or
312 e-mail correspondence/Internet behavior (Newton 2008 and McCue 2007).
313 In closing this section, I would add that in the category of retrodictive discovery
314 profiling, there seems to be more agreement that it is a useful procedure (Wood
315 2006). However, even there Wolf and Lavezzi (2007) cite how even convicted

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316 criminals can deceive forensic psychologists. But the nature of the deception plays
317 upon general psychological truisms as opposed to the specificity of the person being
318 examined.
319 Criminal Profiling thus seems to be less successful when it relies upon
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320 generalities and types. It seems to be more successful when it pluralistically gathers
321 in crime scene data to move toward specificity. Since it is unethical to base too
322 much upon that which is factually less effective, criminal profiling is only ethical

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323 when it focuses upon individual portraits based upon primary factors such as crime
324 scene evidence, witness testimony, and individuated psychological profiles inter-

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325 actively created. All other sorts of profiles are not the state of the art and as such are
326 unethical.

327 3 The Problem with Racial Profiling

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328 3.1 Violation of Equal Protection Under the Law

329 High among the principles of fairness in most systems of justice is treating like
330 cases in an equal manner (Boylan 2004). Statistically, this would lead most to
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331 expect rough parity of crime and punishment throughout any given population,
332 ceteris paribus. However, in the United States, this is not always the case. In Ohio it
333 was found that African Americans were twice as likely as whites to be pulled over
334 in their car (Birzer and Birzer 2006). In Akron 37.6% of all citations for moving
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335 violations went to African Americans while in Columbus it was 50%. In an

336 experiment on the New Jersey Turnpike researchers recorded all vehicles passing
337 them, the race of the driver, and whether they were speeding. The study showed that
338 15% of the violations that occurred were by African American drivers while 46% of
339 all police traffic stops were to African Americans (Birzer and Birzer 2006). A
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340 similar study in Florida showed that on a stretch of Interstate 95 in Florida blacks
341 and Latinos constituted 5% of all drivers yet 70% of all traffic stops (Wise 2005).
342 Other studies have shown similar disparities of stops and searches based upon race
343 (Engel and Calnon 2004; Schmidt et al. 2002; Withrow 2002).
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344 Vikas K. Gumbhir speculates this is because the decision-making capacities of

345 the officers is impaired by three factors: (a) racial stereotypes that are held by the
346 officers that influence the way they perceive racial minorities (mixing facts with
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347 value implications), (b) institutional features of police departments such as hiring
348 policies, training, deployment, scheduling, and professional culture, and (c) a
349 backdoor justification of (a) and (b) by arrest figures that appear to show that the
350 targeting behavior is effective police work (Gumbhir 2007).
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351 A key point here is the phenomenon of stereotyping. In the United States many
352 Americans see a young African American as dangerous and menacing. Randall
353 Kennedy (Kennedy 1997) has argued that this attitude goes back to the era of
354 slavery. Blacks were seen as sub-human: like viscous animals that had to be
355 carefully controlled. In 1990 a survey showed that 54% of whites in the United
356 States thought that blacks are prone to violence and are generally more aggressive
357 than whites (Sniderman and Piazza 1993). These stereotypes create an unequal

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358 treatment of African Americans under the law contrary to the principle of treating
359 like cases equally.
360 In 2002, African Americans comprised 13% of the US population, yet accounted
361 for 38% of all violent crime arrests, 30% of all arrests for property crime
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362 (US Department of Justice 2004). African American youth accounted for 43% of the
363 arrests for violent crime and 27% of arrests for property crime.
364 Not only are African Americans targeted for more careful scrutiny than the

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365 mainstream European descent population, but also when they are caught they
366 receive harsher sentences. The best-known example of this is the so-called ‘‘crack

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367 cocaine’’ versus ‘‘powder cocaine’’ disparity of punishment. The cocaine of choice
368 among poor African Americans is crack. The cocaine of choice among the wealthy
369 Americans (largely white) is powder cocaine. However, until just recently, the
370 mandatory prison sentences for crack cocaine usage was several times what it was
371 for powder usage. The only possible explanation for this is based upon race and

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372 economic class. In addition, a profile of the illegal drug users in the US puts whites
373 at 75% and blacks at 13% (their statistical averages, Katz 2000). Yet the prison
374 population for drug use flips this with African Americans at 75% (Katz 2000)! In
375 general, African Americans are seven times more likely to be incarcerated than
376 whites based upon a population of those arrested: 1–3 (African Americans) v. 1–25
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377 (whites) (Katz 2000).
378 In the media, there is a routine reinforcement of this stereotype. In a study of the
379 local news in Chicago, black criminals were disproportionally portrayed as scowling
380 in mug shots or in video clips walking with handcuffs led by white policemen
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381 (Entman 1990). In this same survey it was found that African American criminals
382 were shown in very negative images 2.4 times more often than their European
383 descent criminal counterparts.
384 The so-called law and order platform and the get tough on crime sound bite are
385 often code words for fanning racial prejudice as was depicted with such brute
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386 effectiveness by Lee Atwater in G. H. W. Bush’s 1988 presidential campaign

387 through the Willie Horton advertisements on television. Here was the slavery-era
388 image of a savage-criminal-black man who was let out of his cage by softheaded
389 Michael Dukakis—just because Horton met the state parole board standards for
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390 parole (equal treatment for like cases).

391 On the concrete level, these examples of stereotyping have been put forth to show
392 one palpable harm to racial profiling: a violation of justice’s fundamental dictum of
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393 equal treatment for like cases—which is unethical. For this reason alone, around the
394 world there should be instigated new policies to limit racial profiling by police.

395 3.2 Skewed Actuarial Findings Based on Types

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396 Racial profiling is akin to type profiling discussed earlier in this essay. This is
397 because a sub-group is set out as being more fruitful for scrutiny than the general
398 population. This is in contrast to this essay’s depiction of profiling as focusing upon
399 forensic evidence, witness evidence, and psychological/behavioral evidence based
400 upon an evaluation of the crime scene and the bull’s eye approach to aim at a token.

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401 However, others view profiling rather differently. They see it as an actuarial
402 problem of class identification, only. If it works, then what is the problem?
403 As I point out in Boylan (2007) insurance companies that only used actuarial
404 criteria in the assigning premiums in life insurance rating tables in the United
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405 States between 1920 and 1970 that were broken out by race, gave significantly
406 higher rates to African Americans. Actuarially, this could be defended to a State
407 Insurance Commissioner as warranted based solely on actuarial figures. But the

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408 statistics do not give the entire picture. The reasons why African Americans had a
409 skewed mortality rate against the European-descent population was because of the

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410 fall-out of various social problems from the post-slavery era: job and wage
411 discrimination, inferior medical treatment options, poverty and poor nutrition,
412 inferior apartheid living environments, and lynching. These factors were instances
413 of oppression by the mainstream society against African Americans. Are the
414 victims required to pay twice? This is unjust (Boylan 2004), thus though the

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415 actuarial figures for life insurance show a higher morality rate, this should not be
416 a legitimating factor for charging higher rates to African Americans—because it
417 was not their fault that they were victims. Society has a negative duty to absorb
418 the cost of their higher respective rates, since it was in that society that the harms
419 occurred.
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420 Bernard Harcourt has extended a similar line of analysis recently. He sets out
421 three arguments against actuarial profiling. The first is that when police create a
422 generalized profile they risk a ratchet effect. For example, if the Internal Revenue
423 Service (IRS) determines that dry wall workers are more likely to cheat on their
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424 taxes than other small businessmen, then the IRS will profile them for particular
425 notice. This will put dry wall workers on notice that they are being targeted and so
426 they will go to greater lengths to hide their monies and others will join the cheating
427 ranks. If this assertion is true, then general profiling of dry wall workers is
428 counterproductive because the policy will enlarge the pool of cheaters rather than
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429 diminish it. Harcourt’s argument against actuarial group profiling accords with my
430 own (as per the life insurance case). But, of course, this is not the sort of profiling
431 that this essay has endorsed.5
432 Harcourt’s second objection against actuarial profiling is that it distorts the
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433 carceral population. This is because the penal population is partly an artifact of
434 whom the state wants to investigate. If we assume, for the purposes of this example,
435 that there are three sub-groups in a population, and if all sub-groups commit crimes
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436 to the same degree, then the over-attention to any one of the groups will skew the
437 carceral population (assuming that more attention equals more arrests). Thus,
438 actuarial profiling may look like it is succeeding, but the reason is remote and not
439 proximate (as Aristotle set out in his definition of proximate and remote causation in
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440 the Posterior Analytics I.13). As remote, it does not provide an explanans but is
441 actually a causal input of the explanandum. Thus, in this second sense actuarial
442 profiling provides district attorneys with prosecutable cases, but the manner in

5
5FL01 It should be noted here that the sort of profiling described by this author is general profiling—using
5FL02 statistics to create type analysis. Instead, I have argued for an individualistic-style, token, profiling.

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443 which it does so is unjust relative to the non-profiled populations because the reason
444 for the extra attention is due to factors arbitrary to the crime, prejudicial intuitions.6
445 Harcourt’s third point is that perceived successes of actuarial profiling has an
446 effect in the judicial system such that tougher sentences are given because the
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447 targeted population is thought to be of a greater risk. However, the greater risk is
448 largely an artificial statistical construction as per the two points listed above.
449 On the abstract level, what is wrong with racial profiling is that it engages in

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450 actuarial profiling. Any group that is targeted solely on the basis of actuarial
451 profiling goes against the advocated model of individualized profiling (set out

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452 earlier). Theoretically, the practice is unsound and the data generated from such a
453 methodology will be epistemologically flawed. Following William Kingdom
454 Clifford (1901), the use of an epistemologically flawed worldview is unethical.

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455 4 Policy Suggestions

456 I have argued in Boylan (2004) that there may be biological bases to racism due to
457 kin selection theory in evolutionary biology. Since racism, as such, is in every case
458 immoral Boylan (2004), actions need to be taken to counteract potential natural
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459 tendencies of one population against another. Unless one is a biological determinist,
460 we can all work to institute policy changes that will blunt and reduce racial
461 profiling. Nature is not decisive. Our ethical good will is (Boylan 2004).
462 Birzer and Birzer (2006) give one practical policy suggestion. They look at the
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463 U.S. Supreme Court case of Whren v. United States (1996). In this case a tacit use of
464 geographical profiling was allowed along with possible racial profiling. The incident
465 occurred in Washington, DC in a ‘‘high drug area.’’ The police stopped the vehicle
466 because it had been too long at a stop sign (around 20 s as opposed to the normal 1
467 or 2 s). When the vehicle was stopped there was a search for drugs and drugs were
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468 found. This creates a broad category of discretionary reasonable suspicion for police
469 officers to act according to their intuitions (intuitions that may be racially biased).
470 Birzer and Birzer contend that a better standard is Batson v. Kentucky (1986) that
471 was set down to eliminate racial profiling in jury selection. The high court created a
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472 Batson test to judge peremptory juror rejection.

473 (1) The defendant(s) must first show that they are members of a cognizable
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474 racial group and that the prosecution has exercised peremptory challenges to
475 remove from the venire, members of the defendant’s race; (2) the defendant(s)
476 may rely on the fact that peremptory challenges are a jury selection practice
477 which allows those who are minded to discriminate to do so; and (3) the
478 defendant(s) must show that these facts and other relevant circumstances raise
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479 an inference that the prosecutor used that practice to exclude the prospective
480 juror on account of race. The burden then shifts to the prosecutor to show a
481 race-neutral reason for excluding the prospective juror (Batson v Kentucky,
482 1986)

6
6FL01 This point links with my own examinations of a couple of actual cases in Boylan (2008).

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483 A Batson-styled rule on racial profiling in the field could be applied to actual
484 cases where the defendant can show that the police officers were inclined to
485 discriminate behind the guise of an allowable discretion in detaining a defendant.7
486 In response the police’s burden of proof is that their actions were based upon race
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487 neutral actions (that themselves were epistemologically justified without recourse to
488 race). This version of the Batson test would need further specification, of course.
489 But such specification has been developed over time with jury selection so that one

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490 might assume that the same might occur with criminal investigation procedures.
491 Once such prudent procedures have adequately evolved, then some version of an

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492 exclusionary rule might be adopted for those not abiding by this Batson-style test.
493 The exclusionary rule (or some form of it) is a very blunt instrument that does
494 sometimes let guilty defendants walk free, but sometimes it is the only way to
495 modify criminal investigation procedures.8 For example, it could be argued that only
496 the exclusionary rule stopped abuses in criminal interrogation and the proper

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497 gathering of evidence.
498 Other sociological institutional approaches have been advocated in the past, but
499 this is a much harder reform. One can hire and promote more minorities in the
500 police force so that the police mirror the general population in any given locale, but
501 if the institutional ethos is group profiling oriented, then no change will occur. This
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502 leads to the most important policy change: training in individualistic criminal
503 profiling using the tripartite model advocated in this essay. When one is focused
504 upon individuals and not upon groups, then actuarial profiling is difficult—the
505 methodology is all wrong. This last policy suggestion has great promise because it
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506 has nothing to do with changing people’s hearts, but rather trains them in the most
507 effective methods of catching and convicting criminals.

508 5 Conclusion
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509 At the writing of this essay, racial profiling is as important an issue as ever. Not only
510 is it an element in normal policing, but also it is now a feature in protecting our
511 cities against terrorism. When the general population begins to feel afraid, there is a
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512 biologically based tendency to blame groups of people. But this is not statistically
513 but rather emotionally founded. Racial profiling is wrong on three fronts: (a) it is
514 type oriented and thus violates the token-oriented method of accepted criminal
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515 profiling, (b) because of (a) it violates the dictum of justice that like cases be treated
516 equally (equal protection under the law), and (c) it theoretically is flawed because it
517 skews statistical analysis through gross actuarial methodological errors. Through
518 this mixture of ethical and epistemological malfeasance, racial profiling is not
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519 in step with proper criminal profiling and it also commits grave ethical and

7
7FL01 Jeffrey Reiman (1996) discusses automatic procedures that limit police discretion (and thereby support
7FL02 the liberty of all). A Batson style test with reasonable procedures that are developed over time would be
7FL03 in the spirit of Reiman’s argument.
8
8FL01 There is a brief discussion of the pros and cons of a form of the exclusionary ruling for evidence
8FL02 obtained via racial profiling by David Wasserman (1996).

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520 epistemological errors. As such we need to explore policies to mute and eliminate it
521 as a criminal investigation procedure.

522 Acknowledgments I would like to thank Greg McCrary, former field agent for the FBI, Michael
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523 Bolton, criminologist and former police detective, and Mary Lindahl, a high profile forensic psychologist
524 for their real world insights that have greatly improved my essay. All errors, of course, are my own.

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525 References

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533 Boylan, Michael 2008. Racial profiling and genetic privacy in criminal investigation procedures. Center
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535 Brussel, James S. 1968. Casebook of a crime psychiatrist. New York: Grove Press.
536 Clifford, William Kingdom (1901). The ethics of belief. In Lectures and essays, Vol 2, 163–205. London:
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