Profiling Whitman Race can be but not factor – a the DOJ Ordinary crime Only in specific investigations for specific suspect – Cannot be used in routine law enforcement decisions National security To the extent permitted by the Constitution – Limited only by EPC EPC Analysis Use of race in profile triggers strict scrutiny – Requires Facial classification (i.e. we stop all people of a race) Specific discriminatory intent (i.e. I stop person of his race) this because Normally rational basis Legitimate purpose Rationally related to that purpose Race based pretext invokes strict scrutiny Compelling state interest Solution is narrowly tailored to the solution you’re seeking Harcourt Profiling Muslims post-9/11 doesn’t work because of substitution effects – (profile is a moving, adaptive target) (see O’Connor in arguing that profiling Arvisu – post-9/11 may be ok) Kennedy Creates a tax” – “race Profiling causes two problems analysis should be strict scrutiny Freidman – – Causes hit rates to go up within the profiled group so becomes self-fulfilling Can’t be examined requires random selection to confirm ex post, ex ante statistical bias exists between races otherwise there is observer bias Narrow tailoring requires knowing how many people of a race commit a crime Given a higher hit rate in one pool than another, the probability of anyone being a terrorist is so low that targeting one group will still fail strict scrutiny Can’t just round up thousands of people based on a single attribute Profiling invokes strict scrutiny under EPC Compelling interest (crime – control/deterrence), narrowly tailored (stats showing proclivity, something else) THEORIES AND HISTORY OF THE 4TH AMENDMENT Test is about reasonableness and concerns for general warrants Scalia (warrants immunized officers for trespasses), Amar, Taylor People must be secure against unreasonable searches, and no warrants shall issue without probable cause Friedman Historically the trend at the time of the framing was towards more specific – warrants, reasonableness searches dangerously approach general warrants Amsterdam The problem with the reasonableness model is deference appeals court to court – and court to police too much = no safeguards Without articulable rules, police are unconstrained To make the 4th Amendment internally coherent Warrantless searches that exhibit the same characteristics as general warrants and writs must be deemed unreasonable if there is no principled basis for distinguishing them from general warrants and writs
Profiling Whitman – Race can be a but not the factor DOJ Ordinary crime – Only in specific investigations for specific suspect Cannot be used in routine law enforcement decisions National security – To the extent permitted by the Constitution Limited only by EPC EPC Analysis – Use of race in profile triggers strict scrutiny Requires Facial classification (i.e. we stop all people of a race) Specific discriminatory intent (i.e. I stop this person because of his race) Normally rational basis Legitimate purpose Rationally related to that purpose Race based pretext invokes strict scrutiny Compelling state interest Solution is narrowly tailored to the solution you’re seeking Harcourt – Profiling Muslims post-9/11 doesn’t work because of substitution effects (profile is a moving, adaptive target) (see O’Connor in Arvisu – arguing that profiling post-9/11 may be ok) Kennedy – Creates a “race tax” Freidman – Profiling causes two problems – analysis should be strict scrutiny Causes hit rates to go up within the profiled group so becomes self-fulfilling Can’t be examined ex post, requires ex ante random selection to confirm statistical bias exists between races otherwise there is observer bias Narrow tailoring requires knowing how many people of a race commit a crime Given a higher hit rate in one pool than another, the probability of anyone being a terrorist is so low that targeting one group will still fail strict scrutiny Can’t just round up thousands of people based on a single attribute Profiling invokes strict scrutiny under EPC – Compelling interest (crime control/deterrence), narrowly tailored (stats showing proclivity, something else) THEORIES AND HISTORY OF THE 4TH AMENDMENT Test is about reasonableness and concerns for general warrants Scalia (warrants immunized officers for trespasses), Amar, Taylor People must be secure against unreasonable searches, and no warrants shall issue without probable cause Friedman – Historically the trend at the time of the framing was towards more specific warrants, reasonableness searches dangerously approach general warrants Amsterdam The problem with the reasonableness model is deference – appeals court to court and court to police too much = no safeguards Without articulable rules, police are unconstrained To make the 4th Amendment internally coherent Warrantless searches that exhibit the same characteristics as general warrants and writs must be deemed unreasonable if there is no principled basis for distinguishing them from general warrants and writs
CrimPro%20Friedman%20Spring%202013.docx