The Second Generation of Racial Profiling

Abstract

Race-based suspect descriptions present a puzzle. Police rely on racially salient eyewitness accounts to establish the suspicion required to stop or question an individual. While racial classifications are generally subject to the most exacting standard of review, you’d be hard-pressed to find a judge or scholar who thinks the use of race-based suspect descriptions gives reason for pause. Why is police conduct that singles people out in view of their race so readily accepted as legitimate? Conventional wisdom holds that race-based suspect descriptions do not count as racial classifications, and that their use should not be understood as state action under the Fourteenth Amendment. These replies are less obviously true, however, than courts and commentators have assumed. The argument that race-based descriptions do not qualify as a racial classification makes much of the fact that the racial designation derives not from stereotyping but from observation of an individual’s appearance in a specific case. While racial identifiers do not bank on pejorative assumptions, this misses that suspect descriptions are used to build racially salient profiles on the strength of which people are treated as potential criminals. Another reason given for why race-based descriptions are not a racial classification is that suspect descriptions are usually made up of multiple factors, and that least one non-racial feature must be included to sustain grounds for suspicion under the Fourth Amendment.