Racial Profiling & Criminalization of People: Question of Natural Justice & Human Dignity

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By: Dr. Aniruddha Babar

It becomes more and more difficult to avoid the idea of ‘non-white’ people especially BLACKS, HISPANICS and MUSLIMS as subjects of not just racial profiling but of an insidious form of racial obliteration sanctioned by silence. One of the major problems that all the societies around the world and mainly the American society is facing, is the problem of racial discrimination, stereotypes and prejudices. Racial profiling has been found to be a complex problem that is constantly associated with human rights, Morales and ethics. Racial profiling is considered as the inappropriate use of race and ethnicity by the police officers and considering race as a criterion to take the professional decisions about the people from particular minorities.

Racial profiling is the way of singling out a person or person specifically on the basis of their race or ethnicity. Racial profiling in United States had started since 1970’s, when the police department of the country had believed that some kind of crimes were more likely to be conducted or committed by the people that belong to particular race or ethnic groups.  Initially racial profiling, which was a discriminatory process was specifically used to target the individuals as the part of the program that was designed to fight against the organized crimes and drug trafficking. One such operation was also called as the “Operation Pipeline”. This practice was started in Canada in the year 1990, when some of the police officers from Royal Canadian Mounted Police received their training from United States. In the period that most common victims of Racial Profiling were ‘Blacks’, ‘Hispanic’ and ‘Natives’. However, over the period of many years and the incident of September 11, 2001, the people from Islamic background, such as Muslims and Arabs are also targeted under racial profiling.

President Clinton in the year 1999 had defined racial profiling as “morally indefensible”. President Clinton had also worked towards addressing this problem and had ordered the Federal law enforcement agencies to compile the data related to the people, who had been searched or arrested on the basis of their race or ethnicity their skin. The minorities living in America were arrested and stopped disproportionately in comparison to Whites. Racial profiling has also been defined as “Any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, [colour], ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment”. This definition also informs that racial profiling is the violation of the law and also the personal rights and freedom of individuals. Racial profiling is also a serious discrimination against people and set a wrong example in front of the world. Such an act increases the prevalence of racism and racial discrimination in the society.

Moreover, racial profiling also created a racial stereotyping against African Americans. Racial profiling is also called as the disparate treatment, where the minorities are disproportionately targeted by the police and are treated inhumanly. The problem of racial profiling has deepened and expanded mainly after September 11, 2001 because the expansion of the police targets has occurred. Earlier, the ethnic minorities living in United States were considered under the process of racial profiling, while now people from Muslim and Arab backgrounds are also targeted, because the mindset of the police officers has changed. Racial profiling is mainly associated with the wrong mindset of the Police, because they have associated certain crimes with people from certain ethnicity. For instance, Black Americans were considered to be of criminal minds and can commit the robberies, murders etc. The main reason behind such mindset is that racial discrimination has a long history and discrimination on the basis of skin colour have been prevalent in the society of United States. The people of colour or different race are predominantly discriminated has become the unjust reality of the society.

It has been a continuous inability and unwillingness of the Government of United States to address the problem of racial profiling. Even after many efforts by some significant Presidents of America, Racial Profiling remains a major problem that had led to the public distrust in Police. Although, the democratic and republicans in America have stated that racial profiling is unconstitutional, yet no significant changes in the condition has occurred.

Racial profiling is also the violation of the international treaties such the treaty of International Covenant on Civil and Political Rights and more specifically the, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). United States had the obligation of complying with the international conventions. However, when the obligatory reports were submitted, they were found to be filled with many gaps and ambiguities. Therefore, Committee on the Elimination of Racial Discrimination (CERD) critically analysed the report and also provided some recommendation to United States. Therefore, many international treaties were violated and even after signing the treaties of preventing discrimination and promoting racial equality, nothing concrete has happened.

Although United States had accepted the obligation, not to engage itself in any kind of racial inequalities or racial discriminations. However, it clearly failed to comply with the Article 2 of ICERD, which stated that effective measures must be taken by the government to amend the national and local policies and must nullify any law or regulation which can create or perpetuate racial discrimination. US required to cease any kind of the racial discrimination activities in the country and were also required to monitor the activities of the police and law enforcement agencies. As the resolution of this, the government of United States had taken the steps to address the problem of racial profiling by providing the regulations and policies to law enforcement agencies related to profiling. However, such guidelines and regulations could not stop individual perspective and belief of officers on duty.

Various scholarly studies had informed that Blacks and Hispanics are more likely to be searched, ticketed and arrested in comparison to White drivers. Although, the criteria applied by the US police department to stop and search these people is not clear. The consideration of the race by police or the law enforcement is a major factor that has resulted in continuation of problem of racial profiling. The US government has been unable to pass the federal legislation that could bind the federal, state or the local law enforcement from conducting racial profiling. Many racial minorities in America especially the African Americans, Latino and Muslims are routinely stopped by traffic police. Therefore, the racial profiling by the law enforcement officers has raised a significant moral concern, because it has developed a discriminatory behaviour against minorities in America.

Racial profiling is significantly considered as the violation of the rights and freedom provided to Americans under fourth amendment of US constitution.  The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In the year 1968 for the ruling of Terry v. Ohio, The Supreme Court of the country has stated that reasonable articulated suspicion could have been considered as the reasonable ground that provides the right to the police officers to briefly stop and question a citizen. However, the Supreme Court also stated that the suspicion should not be based on the police officers “inchoate and unparticularised suspicion or ‘hunch,’ but on the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Therefore, the reasonableness of the suspicion is necessary, which is not followed by the law enforcement officers in US. Another case that raised the concern towards the racial profiling procedure of the police officers and also informs about the violation of the Fourth Amendment was United States v. Brignoni-Ponce. In this case the police officer stopped the respondent’s car just relying on a single factor that respondent has Mexican ancestry. However, according to the minimal requirement for the investigatory stop as informed by the constitution, do not provide the rights to the police officers to stop the car according to their personal belief.

Such prejudices and discriminatory behaviour of the US police was also evident after the incident of 9/11The reports of the CERD committee have shown that after the tragic event of 9/11, the government of United States had arrested and detained many men (as appearing to be), Muslims, South Asians or Arab under racial profiling. Such activity was conducted by the law enforcement officers without concrete evidences, or specific verification material and without any strong grounds for arrest and punishment; these men were scrutinized only on the basis of their appearance and belief that all of them have the connection with the terrorist groups. It was found that none of the people who were arrested and detained and brutality punished by the law enforcement officers had connection with any kind of the terrorist activities and were uselessly defined as the ‘special interest’ by the police of US. This situation had occurred and had appeared to be based on the ethnic, religious and racial profiling of the targeted population. It has been informed that many Muslim men or those having the Islamic background were kept in custody for months and were brutalised psychologically and physically. Even after being free from all the suspicion about being associated with terrorist groups, many of such people were deported on the grounds of racial profiling. The impact of this gross human right violation was very significant on individuals, their families and also on the wider society, because people started seeing the individuals from Islamic or Asian origin to be the criminals or terrorists. Therefore, it can also be said that racial profiling has resulted in increasing racial discrimination in American society.

The racial profiling is a major problem associated with violation of human rights and raises the concern towards moral and ethical duty of the law enforcement agencies towards every citizen. It is important for all the countries to make strict laws and strict guidelines to stop racial profiling and discriminatory behaviour and also, it is a cardinal duty of a common citizen to gather courage to hold the ‘state’ accountable for any discriminatory and unlawful actions committed by its agencies against him.

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