Racial profiling

Philosophy and Public Affairs

Volumn 32, Issue 2, 2004, Pages 131-170

  Risse, Mathias ^a   Zeckhauser, Richard ^a  

^a NONE

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EID: 33747427422     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2004.00009.x     Document Type: Article

References (90)

1. There are exceptions: There is a debate started by Michael Levin, "Responses to Race Differences in Crime," Journal of Social Philosophy 23 (1992): 5-29
2. Laurence Thomas, "Statistical Badness," Journal of Social Philosophy 23 (1992): 30-41
3. Jonathan Adler, "Crime Rates by Race and Causal Relevance: A Response to Levin," Journal of Social Philosophy 24 (1993): 176-84
4. J. Angelo Corlette, "Racism and Affirmative Action," Journal of Social Philosophy 24 (1993): 163-75
5. Chana B. Cox, "On Michael Levin's 'Response to Race Differences in Crime'," Journal of Social Philosophy 24 (1993): 155-60
6. Louis Pojman, "Race and Crime: A Response to Michael Levin and Lawrence Thomas," Journal of Social Philosophy 24 (1993): 152-54
7. Michael Levin, "Reply to Adler, Cox, and Corlett," Journal of Social Philosophy 25 (1994): 5-20.
8. This discussion addresses response to black crime, rather than profiling in particular. Second, there are the contributions by David Wasserman, "Racial Generalizations and Police Discretion," in Handled with Discretion: Ethical Issues in Police Decision Making, ed. John Kleinig (New York: Rowman and Littlefield, 1996)
9. Howard McGary, "Police Discretion and Discrimination," in Kleinig, pp. 131-44
10. Arthur Applbaum, "Racial Generalizations, Police Discretion, and Bayesian Contractualism," in Kleinig, pp. 145-Legal scholarship is more extensive
11. See Samuel Gross and Debra Livingston, "Racial Profiling Under Attack," Columbia Law Review 102 (2002): 1413-38
12. Peter Schuck, "A Case for Profiling," The American Lawyer January (2002): 59-61, for law-oriented views on moral concerns about profiling.
13. For an empirical discussion of the correlation between membership in certain racial groups and the tendency to commit certain crimes, cf. Janet Lauritsen and and Robert Sampson, "Minorities, Crime, and Criminal Justice," pp. 30-56 in Oxford Handbook on Crime and Punishment, ed. Michael Tonry (Oxford: Oxford University Press, 1998) and references therein. See also the appendix of Glenn Loury, The Anatomy of Racial Inequality (Cambridge, Mass.: Harvard University Press, 2002); the homepage of the U.S. Department of Justice; and the homepage of the Racial Profiling Data Collection Resource Center at Northeastern University at http://www.racialprofilinganalysis.neu.edu/ index.php.
14. Our assumptions are, of course, controversial. For instance, the Boston Globe, Metro/Region section, p. 1, reported on January 6, 2003, that police officers in Massachusetts are far more likely to search the car of a black or Hispanic driver pulled over for a traffic violation than the car of a white driver, but that whites are more likely to face drug charges following such searches. Are the police better able to identify white offenders, or white drivers more likely to possess drugs? If statistics showed that white drivers were more likely to possess drugs, then, if profiling is to reduce crime, it should target whites.
15. Our second assumption does not simply follow from the first. For example, stopping and searching individuals may not be effective in preventing crime. Or, while race is correlated with forms of crime, much of its predictive value may be carried by other factors. So in this case the second assumption fails although the first holds. If so, profiling is pointless, and there is no moral justification for it. Conversely, the second assumption may apply, although the first is violated. This happens if criminals in Group X are more easily detected though they are no more common than those in Group Y. Our argument must be reconsidered under such situations, which we believe will be empirical exceptions. Much of our argument will then at least be much weaker. So we will indeed assume that both conditions hold.
16. To keep this approach manageable, we only discuss the utilitarian stance and several nonconsequentialist considerations. We do not consider a welfare-egalitarian approach, consequentialist approach conceiving of the good in terms other than well-being, or other approaches. While this leaves our account subject to revisions, we believe we have included at least the most salient viewpoints in this debate.
17. An example is David Harris, "Driving While African-American: Racial Profiling on Our Nation's Highways," American Civil Liberties Union Special Report, 19The report is about "racial profiling," but it discusses the second and third issues only. Obviously, these two issues constitute enormous problems.
18. (For instance, David Harris, "The Stories, the Statistics, and the Law: Why 'Driving While African-American' Matters," Minnesota Law Review 84 (1999): 265-326, concludes: "It is virtually impossible to find African-American people who do not feel that they have experienced racial profiling.") Nevertheless, it is important to keep the relevant discussions apart.
19. Note that we are not concerned with the practice of "profiling" in general. Both our conceptual analysis and normative inquiry move at the less abstract level of racial profiling. Frederick Schauer's Profiles, Probabilities, and Stereotypes addresses the broader issues.
20. A reader suggested the distinction between "racial profiling as we know it," which is characterized by the three features distinguished above, and "racial profiling as it might be," which uses race for police purposes in ways that strike us as justifiable.
21. Ira Glasser, "Speech: American Drug Laws: The New Jim Crow. The 1999 Edward C. Sobota Lecture," Albany Law Review63 (2000): 703-24, compares profiling with Jim Crow and the internment of Japanese Americans during World War II. Cornel West, Race Matters (New York City: Beacon Press, 2001), p. xv, lists examples of lingering white supremacy, mentioning profiling alongside drug convictions and executions. Bill Clinton described racial profiling as a "morally indefensible, deeply corrosive practice" ("Clinton Order Targets Racial Profiling," Associated Press, June 9, 1999).
22. The relevant (and much debated) constitutional questions turn on the Fourth Amendment (banning "unreasonable searches and seizures") and the Equal Protection Clause of the Fourteenth Amendment. However, our concern is with moral issues, not constitutional interpretation. For legal issues, cf. Richard Banks, "Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse," UCLA Law Review 48 (2001): 1075-124 (Pubitemid 33300405)
23. Sheri Lynn Johnson, "Race and the Decision to Detain a Subject," Yale Law Journal 93 (1983): 214-58
24. Tracey Maclin, "Race and the Fourth Amendment," Vanderbilt Law Review 51 (1998): 333-93
25. Katheryn K. Russell, "Racial Profiling: A Status Report of the Legal, Legislative, and Empirical Literature," Rutgers Race and Law Review 3 (2001): 61-81
26. D. J. Silton, "U.S. Prisons and Racial Profiling: A Covertly Racist Nation Rides a Vicious Cycle," Law and Inequality Journal 20 (2002): 53-90
27. William J. Stuntz, "Terry and Legal Theory: Terry's Impossibility," St. John's Law Review 72 (1998): 1213-29
28. Anthony C. Thompson, "Stopping the Usual Suspects: Race and the Fourth Amendment," New York University Law Review 74 (1999): 956-1013
29. Jerome H. Skolnick and Abigail Caplovitz, "Guns, Drugs, and Profiling: Ways to Target Guns and Minimize Racial Profiling," Arizona Law Review 43 (2001): 413-37.
30. Some believe that the debate about profiling is really about the truth of the assumptions we are making at the beginning of the introduction. Yet there are three significant debates: the first is about the correlation between race, crime, and the effectiveness of profiling; the second about legal aspects; and the third about the moral aspects.
31. Cf. Samuel Gross and David Livingston, "Racial Profiling Under Attack," Columbia Law Review 102 (2002): 1413-38, p. 1426 (in particular n. 53).
32. D. Ramirez, J. McDevitt, and A. Farrell, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned, Report prepared by Northeastern University with support by the U.S. Department of Justice, 2000.
33. Compare another definition of profiling: Richard Banks, "Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse," UCLA Law Review 48 (2001): 1077
34. defines racial profiling as follows: "[R]acial profiling constitutes the intentional consideration of race in a manner that disparately impacts certain racial minority groups, contributing to the disproportionate investigation, detention, and mistreatment of innocent members of those groups." Just like Ramirez et al., Banks defines profiling in a manner meant to solicit moral condemnation. Would Banks approve a racial profiling measure that only involved disproportionate investigation of certain groups of citizens? There is no way to know. Gross and Livingston, p. 1415, submit that " 'racial profiling' occurs whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person's racial or ethnic group are more likely than the population at large to commit the sort of crime that the officer is investigating." Defining profiling by drawing on individual officers' beliefs is peculiar. What if officers disagree with official policies, but happen to implement them? It might be useful to distinguish between "racial profiling at the policy level," and "an individual police officer's being engaged in racial profiling." There can be the one without the other; we are interested in profiling at the policy level.
35. Ramirez et al. and Gross and Livingston do not count such police actions as profiling.
36. Also, profiling is more controversial the less obvious it is that everybody searched is affected by the goal of the investigation, and the greater the magnitude of the possible harm; our cases do not make this clear.
37. We take these examples from Ramirez et al., but all three are widely quoted. Cf. also Harris, "Driving While African-American," for a long list of such cases.
38. Some may argue that abuse and profiling are not independent. The following claims seem to us to be true, and justify our thesis that police abuse and profiling are independent issues: (1) If police abuse ceased to occur, profiling would still be an effective means to reduce crime, but would also still be in need of justification. (2) If no profiling occurred, abuse would still persist. Claims (1) and (2) are consistent with the following claims: (3) Racial profiling plays some causal role in the occurrence of abuse. (For example, both minorities and police are "repeat players"; they encounter each other frequently and thus their interactions are shaped by sentiments acquired in past encounters.) (4) Police abuse may help stimulate some of the activities that profiling is intending to reduce. (The perception of the police as a hostile force may increase one's willingness to commit certain crimes.) (5) Some police officers practice profiling as a form of harassment, and thus profiling brings about situations in which abuse becomes possible to begin with. We do not take a view on whether, or how often, (3), (4), and (5) are true.
39. Banks, for instance, introduces disproportionality into the definition of profiling, suggesting that "racial profiling constitutes the intentional consideration of race in a manner that disparately impacts certain racial minority groups, contributing to the disproportionate investigation, detention, and mistreatment of innocent members of those groups." It is unclear which sense of "disproportionate" Banks has in mind.
40. It is not the likelihood that the criminal is from a particular group that determines the expected payoff per person searched. It is that likelihood divided by the proportion of that group in the population.
41. Critics often do not think of disproportionately vis-à-vis the goals of the investigation when complaining that minorities are affected disproportionately by such measures. Proportionality as fairness appears in Section V, when we discuss nonconsequentialist objections to profiling. One idea of proportionality motivated by fairness is that, should members of a group G commit, say, 40 percent of the relevant crimes, 40 percent of the searches be targeted towards members of G. The discussion beginning in the next paragraph shows why this suggestion does not capture an idea of proportionality vis-à-vis the goals of the investigation. The same is true for the proposal that, if 40 percent of the inhabitants of a certain area belong to G, then 40 percent of the searches would have to be of them; the proposal that each perpetrator should have an equal likelihood of being apprehended; and the proposal that, for each racial group, each innocent person must have an equal likelihood of being left alone. The dangers of over-reliance on race are illustrated by the recent experience with the Washington, D.C.-area sniper in fall 2002, where on the basis of past experience with serial killers, the authorities judged that the perpetrator was a white man working alone. The two African American perpetrators, who worked together, are believed to have passed through roadblocks despite incriminating evidence in their car. That is, excessive attention to demographic profiles led the police to discard useful information. In routine uses of profiling for intercepting drug traffic or seizing illegal weapons, for example, indicators beyond race and gender are telling. A Caucasian American talking to a Colombian drug dealer on the street at midnight is more likely to be involved in drug trade than a random Colombian immigrant engaged in the same activity.
42. The evidence that is to be considered for assessing profiling is highly contextual: black person cruising in a completely white area may give more reason for suspicion, other things being equal, than one in a mixed middle-income neighborhood, just as a white person cruising in a black ghetto is more likely than a black or white elsewhere to be up to no good.
43. J. N. Knowles, N. Persico, and P. Todd, "Racial Bias in Motor Vehicle Searches: Theory and Evidence," Journal of Political Economy 109 (2001): 203-29.
44. One other fairness-related worry about profiling (that we endorse) is that it should be consistently practiced across the board, other things being equal. It is illegitimate for a jurisdiction to apply profiling when it targets only minorities, but not when the priority targets would be mostly whites. For instance, one practice that some jurisdictions find useful for crime reduction is to stop African American drivers in neighborhoods where few or no African Americans live. But that jurisdiction may also have good reason to stop whites in African American areas because (say) they are likely to be looking for drugs, or to keep an eye on any young people driving around in a retirement community. Police should be seen to apply profiling even-handedly. Even in cases in which some acts of profiling are acceptable by themselves (noncomparatively), there will be a legitimate complaint otherwise (from a comparative viewpoint). In addition, everybody must be informed about the reasoning behind profiling. In particular, everybody (most urgently members of the targeted groups) should understand that being investigated for membership in a group correlated with crime does not mean being a suspect.
45. Some believe the question of which crimes "society takes seriously" may be a racist matter: it is because of irrational fear of black violence and black-led moral decay that police spend so much effort on fighting "black" crimes. We find it hard to assess this claim, but if it is true it would complicate things.
46. Shelly Kagan, "The Additive Fallacy," Ethics 99 (1988): 5-31.
47. Frances Kamm, "Harming, Not Aiding, and Positive Rights," Philosophy & Public Affairs 15 (1986): 3-32.
48. Randall Kennedy, "Suspect Policy: Racial Profiling Usually Isn't Racist. It Can Help Stop Crime. And It Should be Abolished," The New Republic: September 13 & 20, 1999, p. 30, in turn, is based on Randall Kennedy, Race, Crime, and the Law (New York: Vintage Books, 1997), in particular ch. 4, pp. 136-67.
49. Consider the case of higher car insurance rights for young drivers. They could complain that it is not their fault that they are presently in a certain age range and that this fact should not mean that they pay high insurance rates. In response, one could point to the overall higher accident risk that young people carry, and in addition, that everybody goes through this age range and will later be in a position to benefit from lower rates. It seems that once this is explained, acquiescence can reasonably be expected. Gender presents an interesting case. In some jurisdictions, such as Massachusetts, rates are not permitted to be based on gender, although young males have much higher accident rates than young females.
50. If this claim is correct, it helps us understand why whites frequently have trouble understanding why in particular blacks object so vehemently to racial profiling; blacks grow up in a society that they perceive as racist, and profiling is a focal point of this racism; whites usually view profiling in isolation.
51. We believe that the harms of racism and profiling may be subadditive, just as the harms of different forms of racism may be. In a world where blacks are discriminated against in schooling and jobs, are they made much better off if only one of the forms of discrimination is removed?
52. We have not discussed any considerations of deterrence: but those will only support the utilitarian case. (On deterrence, cf. also Sec. VI.)
53. The New York Times reports evidence to the contrary. According to David Kocieniewski and Robert Hanley, published on December 3, 2000 (sec. 1, p. 53, col. 2), in the mid-1980s, the federal Drug Enforcement Administration started to enlist local police forces to catch smugglers who imported drugs from Latin America, often to Florida, and then moved them to major cities by car. By 1989, "the New Jersey State Police had become such a successful part of 'Operation Pipeline' that D.E.A. officials hailed the troopers as exemplary models for most other states."
54. Quote taken from Kennedy, p. 152.
55. Kennedy quotes here an essay written by African American police officer Don Jackson, who moved about in Long Beach, California, after dark and without the protection of his uniform. A camera team followed him and filmed the ensuing unpleasant encounters with the police. He later wrote an essay about his experiences as a victim of racially selective police practices.
56. Consider two other objections at this point: First, is this not a cynical view that does not find anything wrong with placing a certain burden on minorities and, by way of justifying this, actually appeals to the fact that minorities (here in particular African Americans) are burdened by racism already? Our response is that this objection makes a caricature of the view we defend. Our point is that racial profiling (again, minus police abuse and disproportionate use of race in police tactics) can in certain cases be justified on utilitarian grounds as a means in police tactics even in a racist society, and that it would be too easy to think that racism can be removed by depriving the police of a useful means of crime fighting (in those circumstances in which that is true). This view is consistent with any number of measures that try to make society as such less racist (many of which we support, but that is irrelevant to the argument). A second and related objection wonders whether one cannot justify any racist practice by arguing that it is merely expressive and that changes must occur elsewhere. Yet this objection overlooks that racial profiling (again, minus the two other phenomena) is not "just any racist practice," but a practice that, under certain circumstances, plays a useful role in police tactics and thus has a certain value for society as a whole. A similar characterization will simply not be available for practices such as disproportionately screening African Americans for certain genetic diseases.
57. One reader has objected that the case of Arabs after 9/11 shows this reasoning to be problematic. For this group, although racism and cultural prejudice were evident before 9/11, the introduction of profiling of various sorts might, and, the objector suggests, did, have a huge incremental effect, transforming a latent and not very bothersome (because not much expressed) racism into something like full-blown social stigmatization. However, we find it hard to assess that case relative to that of African Americans. It seems to us that the crucial difference is not so much that we have, say, African Americans in the one and Arabs in the other scenario, but that 9/11 was such a traumatic experience for the American public that invariably all subsequent developments connected to it will be hard to compare to other scenarios. We do not think that this comparison has implications that undermine our discussion above.
58. For more discussion of pejorative discrimination, cf. Lawrence Blum "I'm Not Racist, But . . ." (Ithaca: Cornell University Press, 2002), ch. 4, pp. 78-97
59. John Hasnas, "Equal Opportunity, Affirmative Action, and the Anti-Discrimination Principle: The Philosophical Basis for the Legal Prohibition of Discrimination," Fordham Law Review 71 (2002): 423-542.
60. This definition compels us in some cases to say that, although pejorative discrimination was operative when certain policies were set up, they need not be changed if the policy's effects are not discriminatory. This seems acceptable.
61. Note that the point about the kind of harm caused by racial profiling that we are using here is not that it is smaller than many think ("incremental harm"), but that its nature is expressive.
62. One may suggest that an alternative way of arguing for the claim that racial profiling is not pejorative discrimination is to argue that it is justified independently, as a way of contributing to the provision of a very elementary public good (safety). Yet while we agree that such an argument is in principle possible, it would require a slightly different notion of pejorative discrimination. As we define it, a practice is not automatically exempt from being pejorative discrimination if it can be shown that that practice can be independently justified, not even if that independent justification involves reference to an elementary public good such as safety.
63. Recall that in Section IV, we said that the harm caused by racial profiling was "largely" expressive. The inconvenience imposed by the acts of profiling is the small complementary harm. That harm also is not pejorative discrimination, since it does not foster an oppressive relationship. This claim comes with qualifications tied to well-known debates among nonconsequentialists: whether there is a moral difference between doing and letting happen, between intending and foreseeing, and how to allow any degree of aggregation in deontological accounts.
64. Cf. Frances Kamm, "Non-Consequentialism," in The Blackwell Guide to Ethical Theory, ed. Hugh LaFollette (Oxford: Blackwell, 2000), pp. 205-27, for an overview.
65. What counts as an attack must be assessed, too. Our argument will not benefit from discussing such complexities.
66. At this stage, we encounter questions about the foundations of rights, the scope and limit of state power, and so on, questions that go beyond what we can address here. But even without filling in such details, it seems fair to say that this idea of a society characterized by Functioning Reciprocity, properly expanded, provides resources to justify the imposition of differential burdens in a broad range of cases without allowing for extreme cases such as the two just mentioned above, or aberrations such as police abuse.
67. The qualification in parentheses is important: if it does not lie in the nature of the good in question that some groups are particularly equipped to provide it, but for some reason we must still impose differential burdens, the first sufficient condition we are about to propose would decidedly not hold any more.
68. Once again we are omitting details and setting aside foundational questions. We ask the reader to complete the construction of this society in such a manner that what requires justification is indeed the unequal imposition of a burden in pursuit of a public good, and not anything else. We think this can be done, but filling in more details would be tedious. In particular, we are assuming that the relevant society is a broadly decent society, so that questions about how these considerations would fare under extreme circumstances (such as life and death cases) do not arise, or can be side-stepped.
69. To make more precise what does the work: We are claiming: (a) the fact that the more burdened group is a net beneficiary overrules (b) the opposition of that group to the imposition of that burden, given that (c) the good is a public good that one can reasonably expect is widely desired, that (d) providing the good in a manner that imposes equal burdens would be enormously inefficient or impracticable, that (e) the group that is especially burdened is also in an especially good position to provide that good, and that (f) only the unequal burden must be justified (no other issues arise). Obviously, each of these conditions is vague and thus leaves us open to such questions as "What if the opposition is really fierce?" or "What precisely is meant by 'enormously inefficient' or 'impracticable'?" While disputes will remain, we believe that, for wide range of ways of filling in details, our reasoning goes through.
70. Suppose there is another, equally effective way of providing the good in question that is more expensive all things considered, but is less burdensome to the group asked to carry the extra burden. Our sense is that, in such a case, our criterion still works. This will be true in particular if the good in question is of a rather basic nature, such as security. In this case, the nature and importance of the good justifies the imposition in the first place, and it seems, then, that it is indeed sufficient for unilateral imposition that the party so affected is a net beneficiary. However, the magnitudes matter here, and so we are offering this answer with some reservation ("What if that other method is really much better for that group, but only slightly worse all things considered from the point of view of society as a whole?"). Like our discussion in VI.3, this point turns on general issues about nonconsequentialist aggregation.
71. Presumably the transaction costs (e.g., recording payment and preventing fraud) would not make this procedure too expensive. Some additional questions arise, however: should there be compensation unless someone is arrested, or unless someone is convicted? Could it lead to corruption? Could it provide incentives for people to try to get stopped? In addition, there is the objection that such compensation could be seen as insulting: if police work is done properly, subjecting oneself to police measures should be a civic duty. More discussion is needed. It may not be possible, without much bureaucratic effort, to make this compensation fair in each case, but the compensation system should work in such a way that compensation is fair on average. (A similar case would be an airline that gives people $100 if a plane is delayed a certain while; on average, this might be fair even if some people are damaged to a larger extent. A compensation system could be implemented for air travel, although this would increase ticket prices.)
72. Kennedy, Race, Crime, and the Law, p. 161, makes this proposal. However, if we adopt this proposal because some carry an undue burden of the costs of security by virtue of their race, this point still holds true once the new proposal is implemented. For it would mean searching people whose race is a good indicator of innocence. Apart from raising fairness concerns of its own, such measures might also lead to resentment.
73. Consider a pragmatic consideration that is not part of the argument of this section: The extra expenditure may come about indirectly. If the African American crime rate is reduced, the majority population may be more sympathetic and generous to the disadvantaged.
74. See crime reports for confirmation of these claims: http://www.ojp.usdoj. gov/bjs/homicide/race.htm. Such a generational contract burdens men more than women. Also, young men with a penchant for crime would not benefit from this arrangement. We do not think that these points undermine our argument. We assume that the amount to which African American crime affects African Americans is not so overwhelming that such crime is a problem internal to the their community.
75. That the majority community benefits alongside does not weaken this argument. It does suggest that in return for profiling, more might be extracted from the majority. Reverse causality could apply: If society gives individuals strong signals that it thinks they are criminals, they might become inclined to act like criminals.
76. The targeting of a neighborhood could be profiling if race, not merely crime rates, influences targeting.
77. Suppose group X commits more crimes than Y, where neighborhoods vary in ethnic composition, but in each neighborhood the tendency to crime is the same across groups. Example: Neighborhood 1 has a 10 percent share of criminals across groups, 80 members of X, and 20 members of Y. Neighborhood 2 has a 50 percent share across groups, 20 members of X and 80 members of Y. So members of Y are more likely to be criminals (42 percent vs. 18 percent), but if the neighborhoods are isolated, group-based profiling will be pointless.
78. Yet in light of the amount of black-on-black crime, it might not be clear what the African American community wants.
79. Expressed views may not be the predominant attitudes in the community. African Americans supporting profiling are likely to be criticized, given that costs of profiling are seen directly but benefits can only be inferred. Self-censoring may be the result.
80. Brandon Garrett, "Remedying Racial Profiling," Columbia Human Rights Law Review 33 (2001): 41-148, reports on cases where community groups were successfully integrated into police work.
81. Cf. Michael Walzer, "The Obligations of Oppressed Minorities," in Obligations: Essays on Disobedience, War, and Citizenship, ed. Michael Walzer (Cambridge, Mass.: Harvard University Press, 1970), pp. 46-70, on compliance of oppressed majorities; cf. ch.
82. 10 of Bernard Boxill, African-Americans and Social Justice (Lanham: Rowman and Littlefield, 1992), pp. 205-25, for civil disobedience and racial justice.
83. We said in V.3 that under Functioning Reciprocity, a drafted soldier would have no complaint against the draft even if he personally did not (by and large) benefit from social arrangements. For such a society does just about all it can to make sure assignments of burdens and benefits are fair. Under such circumstances, a complaint would be about the fact that burdens and benefits are assigned according to general principles whose enforcement must remain feasible (since society must remain functional) rather than by considering each individual's circumstances. Such a complaint could not be reasonable, given the sheer pragmatic constraints on the organization of society. However, we live in a society characterized by less harmony than envisaged by Functioning Reciprocity. Under such circumstances, Randolph does have a complaint against the uneven imposition of burdens, even if other members of the African American community do not.
84. To further illustrate the notion of strong urgency, suppose we had information that a terrorist group had smuggled a nuclear bomb into some relatively small area of upper Manhattan. It seems that under such circumstances we would find it morally acceptable to set aside usual constraints on what counts as a reasonable search, and the criteria (e.g., ethnic identity) on which we might prioritize the search. While there are obviously important differences between this scenario and the profiling scenario, such examples should suggest that this notion operates quite intuitively in a broad range of cases.
85. The background to this discussion in VI.3 is the discussion about how nonconsequentialists can acknowledge aggregation. Being a nonconsequentialist means being committed to not merely evaluating actions in terms of their consequences, but it does not mean that one must refrain from including aggregation of any sort. For discussion of this point
86. Kamm, "Non-Consequentialism," sec. VIII, and Thomas Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998), ch. 5.9
87. David Wasserman and Alan Strudler, "Can a Nonconsequentialist Count Lives?" Philosophy & Public Affairs 31 (2003): 71-94
88. for the view that attempts to integrate aggregation into nonconsequentialist frameworks have so far failed. Note that, if a condition of sufficiently strong urgency is acknowledged as making impositions reasonable that otherwise would not be, then it seems that otherwise unreasonable impositions might also be justified if a few are burdened to benefit the many significantly; the nature of the imposition must not be too severe. (Recall that we have argued in Section IV that the imposition of profiling as such would in many cases not be "too severe.") Note also that endorsing the view that nonconsequentialists need to make room for some forms of aggregation does not imply that just any kind of harm can be weighed against any other kind. In particular, suggesting that conditions of strong urgency (or sufficiently small numbers of people who are negatively affected by the measure) justify profiling as a crime-fighting measure under conditions where it otherwise would not be justified does not require that we endorse any measures that jeopardize some people's lives for the aggregatively greater benefit of a larger number of people, each of whom benefits only marginally. Note finally that we are in no position to offer a full-fledged theory of nonconsequentialist aggregation that would give appropriate theoretical grounding to our claims here. Exploring possibilities for the creation of such a theory is an ongoing challenge, particularly since many, if not most, nonconsequentialists acknowledge the need for some modes of aggregation.
89. To address cases like Randolph's specifically, one might also consider less intrusive procedures, such as the introduction of devices that keep track of whether somebody has already been "checked" (cf. end of Section VII). (4) One may also object to the argument of this section as follows: It seems that the fact that a person benefits is discounted when we consider imposing a burden for his own benefit (i.e., this benefit is dismissed by paternalism considerations). However, the fact that a person benefits is not discounted when we need to justify a burden that also benefits others. Such a distinction seems unjustifiable. However, this objection rests on a wrong premise: In both cases we count the imposition as a problem that requires justification, and in both cases we count the fact that somebody benefits as a point in favor of the imposition. In this respect, the situations are symmetrical. However, the symmetry is broken because in the one case other people's benefits are at stake, and it would be a "sufficiently large" benefit for them that justifies the imposition (as explained in the text). By contrast, if only the imposed-upon individual benefits, a nonpaternalistic stance keeps us from making the unwanted imposition. There are no other people whose benefits could overrule the individual's wishes.
90. Absent other considerations we are unaware of, Arabs still have the complaint that the reference to self-interest, which in our view could justify profiling for African Americans, does not work for them. A roundabout self-interest argument could be made, assuming Arabs were more prone to hijacking. By accepting screening, they reduce the likelihood of a future Arab-hijacking incident, which would bring great pain to the Arab community.