Post on 10-Jan-2023
Racial Profiling and Background
Injustice
Paul Bou-HabibDepartment of Government
University of Essexpbou@essex.ac.uk
Introduction
Racial profiling involves selecting
people for a given purpose on the
basis of their membership of a
particular racial group. The main
reason in favor of using racial
1
profiling in the context of criminal
investigation is that it can
increase the chance of catching
criminals. If the rate at which
members of a particular racial group
commits a crime is higher than that
of other racial groups, more
criminals will be caught if the
police concentrate their efforts on
investigating members of the racial
group in question. Racial profiling,
in other words, can be an efficient
use of police resources.1 1 The assumption that racial profiling is efficienthas been contested by Bernard Harcourt on the ground that it only encourages more crime to arise within the non-profiled group and thus does not necessarily diminish the overall amount of crime in
2
But racial profiling can be
wrong for a number of reasons. It is
wrong, first, it is informed by a
racist attitude on the part of those
who use it – that is, by an attitude
that consists of false and
derogatory beliefs about the group
that is the object of the racial
profile. Racial profiling is wrong,
for example, if it is informed by
the claim that certain racial groups
are essentially less able to comply
with the law. Secondly, we have society. In this paper, I do not discuss Harcourt’sarguments. I simply note that the moral concerns I enter into depend for their significance on there being at least some cases in which racial profiling is efficient. See Harcourt (2007).
3
reason to reject racial profiling if
its use is accompanied by a
harassing manner on the part of
public officials towards those
investigated. Thirdly, racial
profiling can be morally problematic
if it is used in an unfairly
selective way – that is, against one
racial group but not against another
in the same circumstances. Finally,
we have reason to reject racial
profiling if the burdens its use
imposes on innocent members of the
racial group in question are greater
than the benefits it provides in
4
terms of protection from crime.
Should any of these reasons apply to
a given use of racial profiling, we
might well conclude that we should
reject that use of racial profiling
despite the gains it might provide
in terms of efficiency.
But what if none of the above
reasons against racial profiling
apply to a given use of racial
profiling? Following Lippert-
Rasmussen, let’s call racial
profiling that is not tainted by any
of the above negative factors,
5
unalloyed racial profiling.2 Is
unalloyed racial profiling
legitimate?
In this paper, I would like to
discuss one aspect of that question.
The moral status of unalloyed racial
profiling seems to change depending
on whether the group being profiled
has been treated, or is currently
being treated, unjustly in other
contexts – that is, contexts other
than the immediate context of crime
investigation. If the group being
profiled has been, or is, 2 Lippert-Rasmussen discusses unalloyed racial profiling in Lippoert-Rasmussen (2006).
6
systematically or unjustly
disadvantaged in the distribution of
significant goods, such as housing,
education, or jobs, and/or if it has
been or is subjected to widespread
and persistent racism, then we tend
to be more uncomfortable with its
being racially profiled than we
would be if the group in question
had not been unjustly treated in
these ways. Racial profiling seems
morally more troubling, for example,
when it is used to investigate black
people than when it is used to
7
investigate white people.3 Let me
call this intuition about the
conditional nature of the moral
status of racial profiling, the
background injustice intuition.
The question I want to address
in this paper is whether there is a
sound justification for the
background injustice intuition. Why
should we think that facts about
background injustice matter for the
moral status of racial profiling?
What principles might account for
3 The background injustice intuition is supported by Lippert-Rasmussen in Lippert-Rasmussen (2006: 203-4).
8
the relevance of facts about
background injustice? My aim is two-
fold. First, I want to argue that
two possible justifications for the
background injustice intuition that
one might draw from the literature
on racial profiling are problematic.
The first account is that background
injustice can be relevant for the
status of racial profiling because
it can imply that the group that
proposes to use racial profiling may
have been responsible for the social
circumstances that have led to the
higher rate of offending within the
9
profiled group and thus indirectly
responsible for creating the grounds
that give racial profiling its
rationale. When those who propose to
use profiling are implicated in this
way - that is, in helping to cause
the higher offender rate within the
profiled group - we rightly feel, so
it is argued, that racial profiling
is morally problematic.4
The second basis for the
background injustice intuition
available in the literature is that
4 This responsibility-based account of the background injustice intuition is drawn from (Lippert-Rasmussen: 2006).
10
facts about background justice
matter because they can mean that
racial profiling, in addition to
imposing the practical burdens of
being investigated, now also produce
an expressive harm against those who
are profiled. It is because racial
profiling under background injustice
harms by expressing that background
injustice – by making its presence
vivid in the awareness of those who
are profiled – that background
injustice renders racial profiling
morally problematic.5 5 This expressive harm based account of the background injustice intuition is drawn from (Risse
11
While I believe neither of these
accounts adequately justifies the
background injustice intuition, I do
not believe the intuition should be
dismissed. My second aim in this
paper is therefore to provide an
alternative basis for why facts
about background injustice are
relevant in determining the moral
status of racial profiling. I will
instead argue that they matter
because they can lead racial
profiling to humiliate those who a
profiled. When there is background
and Zeckhauser 2004).
12
injustice, racial profiling is more
like to make the profiled appear to
others in a way they themselves
regard as demeaning, and this, I
argue, gives us a strong reason to
refrain from racial profiling.
Before turning to these
arguments, I need to allay some
reasonable concerns one might have
about the relevance of the
discussion I want to pursue in this
paper. One concern might be that the
discussion is too rarified, too
removed from the ordinary
experiences we have in our society
13
with the use of racial profiling.
Racial profiling as it is practiced
today is often not unalloyed in the
ways I stipulated above. Its use is
afflicted with, at best,
intermittent racism and harassment,
and it is not at all clear that the
benefits it provides always outweigh
the burdens it imposes. What’s the
point, one might ask, of asking
moral questions about a laundered
version of racial profiling? The
answer is that our not currently
pursuing unalloyed racial profiling
does not mean that it is impossible
14
for us to pursue it. It is too
cynical to maintain that the
deficiencies just listed in our
current uses of racial profiling are
permanently hardwired into the
behavior of public officials. Given
that it is possible to reform police
practice in the direction of
unalloyed racial profiling, the
point of the discussion, here,
should be clear: we need to know
whether we should indeed move in
that direction.
Secondly, one might be concerned
about the narrowness of the
15
discussion pursued here. I am
proposing to discuss one sub-
category of racial profiling –
unalloyed racial profiling – and,
even more narrowly, the impact on
the moral status of that sub-
category of one factor, namely,
whether or not there is background
injustice. Aren’t there bigger fish
to fry in our moral assessment of
racial profiling? Actually, there
aren’t. Alloyed racial profiling is
obviously wrong: it is obviously
wrong for police to be racist in
their conduct, to harass people, to
16
use racial profiling in an unfairly
selective way, or to impose the
burdens of racial profiling on
innocent people only to ensure
comparatively insignificant
benefits. What remains that is worth
discussing is the unalloyed sub-
category of racial profiling.
Furthermore, unalloyed racial
profiling is worth discussing only
if there are significant disparities
in offending rates across different
racial groups (if there aren’t then
it is obviously unjustified). But it
seems reasonable to assume that such
17
disparities arise only under
conditions of background injustice
(would there really be significant
offending disparities between racial
groups if all groups were treated
justly?). In that case, unalloyed
racial profiling under background
injustice is the main case worth
discussing in the moral assessment
of racial profiling.
1. The background injustice
intuition
18
We can understand the background
injustice intuition as follows:
‘racial profiling aimed at a
particular group is rendered morally
more problematic by the fact that
that group has been treated unjustly
in other contexts.’ Before
considering possible justifications
of the background injustice
intuition, we need to clarify the
intuition in a couple of respects.
First, I shall assume that
background injustice provides an
independent reason for refraining from
a given case of racial profiling as
19
opposed to being an indicator that
one or another of the four standard
reasons against racial profiling
apply to that case. That blacks as
opposed to whites are subjected to
background injustice might lead us
to suspect that when the police
racially profile black drivers, they
might sometimes be motivated by a
racist attitude towards black
drivers but not white drivers, or
that they might treat black drivers
but not white drivers in a harassing
manner, or that they might
selectively impose such profiling on
20
blacks in an unfair way – i.e. in
circumstances in which they would
not have imposed it on whites, or
that they might impose such burdens
on blacks, but not on whites, when
the benefits don’t justify it. I
shall assume that the background
injustice intuition is not the
intuition that background injustice
is merely an indicator of any of
these further differences in
treatment. It is the intuition that
background injustice plays an
independent role in accounting for
what is, in some cases, wrong about
21
racial profiling. In other words,
the intuition is that there would be
moral reason to refrain from racial
profiling when there is background
injustice even if background injustice
were not an indication of any of the
other tainting factors mentioned in
this paragraph.
Secondly, I shall give the
background injustice intuition a
deliberately broad and open-ended
definition to begin with. This is
because the task of making it more
specific cannot be undertaken until
22
we have on hand a justification of
that intuition.
The statement of the intuition in
the opening sentence of this section
of the paper is vague and leaves
open a number of issues we need to
pin down if we are to morally
evaluate different uses of racial
profiling. In particular, we need to
know exactly which kinds of
injustices in the background are
relevant for casting moral doubt on
particular uses racial profiling. Is
past injustice sufficient for
casting moral doubt on present-day
23
racial profiling, or is ongoing
injustice necessary? Furthermore,
what kinds of injustice in the past
or present are necessary in order to
cast moral doubt on a given case of
racial profiling? Another issue is
whether it is relevant exactly who
the perpetrators of those injustices
were or are for determining the
status of a current case of racial
profiling? For example, is what is
relevant for the troubling nature of
racial profiling under background
injustice the fact that the
perpetrators of the background
24
injustice are the same groups who
are now in favor of using racial
profiling? Or is it rather that the
perpetrators are the intended
beneficiaries of the protection from
crime that racial profiling
provides? Or is the identity of the
perpetrators of background injustice
irrelevant for the troubling nature
of racial profiling? There is no
point in providing a more specific
definition of the background
injustice intuition that includes or
excludes some of these possibilities
upfront. We can only do that once we
25
have an adequate justification of
the background injustice intuition.
2. Background injustice and
responsibility
The first justification of the
background injustice intuition I
shall consider is one that can be
drawn from Lippert-Rasmussen’s
discussion of the relationship
between background injustice and
certain facts about causal
responsibility. According to
Lippert-Rasmussen, groups other than
26
the profiled group are sometimes
causally responsible for the unjust
social circumstances that have led
to a higher offender rate within the
profiled group. A large part of the
proximate cause of the higher
offender rate within a given racial
group is the set of social
conditions that makes the avoidance
of crime more difficult for members
of that group, such as, for example,
a comparative lack of education,
housing and employment
opportunities. However, behind the
difficult social conditions that
27
cause higher offender rates among
disadvantaged groups lies a deeper
cause: the unjust failure of the
more advantaged in society to
support public policies that could
ameliorate those social conditions.
Now the relevance for our
discussion of that fact about deeper
causal responsibility on the part of
the advantaged classes is as
follows.6 Depending on other facts, 6 Lippert-Rasmussen also finds the responsibility of the more advantaged for the higher offender ratewithin the profiled group relevant on the ground that it can entail that racial profiling is not ‘comprehensively justified’. A policy fails to be comprehensively justified when its rationale depends on the fact that those who advocate it undertake unjustified actions towards others. In what follows, I leave aside this part of Lippert-Rasmussen’s discussion. See Lippert-Rasmussen
28
it may mean that the profiled may
reasonably reject being subjected to
profiling. To see this more clearly,
it is helpful to distinguish two
types of cases. Consider first a
highly artificial, pure case, in
which, on the one hand, all people
who are not profiled, call them the
‘non-profiled’, share (unjust)
responsibility for the higher
offender rate, while, on the other
hand, all the profiled reject racial
profiling. Lippert-Rasmussen argues
(2006: 197). The idea of ‘comprehensive justification’ was first put forward by G. A. Cohenin (Cohen 1992).
29
that in this pure case all the non-
profiled can be said to have forfeited
the claims to protection that racial
profiling might provide for them,
while all the profiled can be said
to have waived those claims. As
Lippert-Rasmussen puts it, referring
to pure cases: ‘while the absence of
racial profiling increases the risk
that one’s rights will be serious
violated [as a result of higher
crime], everyone is either
responsible for this fact or has
consented to exposure to the
increased risk.’ (Lippert-Rasmussen
30
2006: 201)7 In the pure type of case,
no countervailing claims thus stand
in the way of the rejection of
racial profiling by the profiled and
that rejection is thus reasonable.
Consider, next, impure cases,
namely, cases in which only some of
the non-profiled are unjustly
responsible for the higher offender,
and where only some of the profiled
reject racial profiling. Of such
cases, Lippert-Rasmussen holds the
following view: (a) the greater the
7 Lippert-Rasmussen does not use the terms, ‘forfeiture’ and ‘waiving’, respectively; those aremy terms.
31
groups that have either forfeited or
waived their claims to protection
and (b) the lesser the harm profiling
would prevent for the remaining,
non-forfeiting and non-waiving
groups, the more reasonable it is to
reject racial profiling. And he
maintains that the converse
conclusion follows once we reverse
the magnitudes under headings (a)
and (b). We would need to exercise
judgment, then, about the kinds of
cases that unjust responsibility
would make it reasonable for the
profiled to reject, but there would
32
certainly be a range of cases in
which unjust responsibility could
justify the background injustice
intuition.
The responsibility-based account
of the background injustice
intuition provides an independent
reason for why we should find
background injustice relevant for
the moral status of racial profiling
– a reason that is independent of
the standard reasons on the basis of
which we might otherwise reject
racial profiling, such as, for
example, that it based on a racist
33
attitude towards those who are
profiled. Furthermore, it helps us
pin down some of the issues left
open by our initially broad
definition of the background
injustice intuition. It tells us,
for example, that the relevant
injustices in the background needn’t
be ongoing injustices but could be
merely past injustices, so long as
it remains an effect of those
injustices that there exists a
higher offender rates within the
profiled group. Additionally, the
responsibility-based account tells
34
us that it is necessary that those
who advocate racial profiling today
belong to the same group that
perpetrated the past injustices. For
example, background injustice would
not cast moral doubt on racial
profiling aimed at a group of
immigrants if the higher offender
rate if the host country advocating
the use of profiling did not cause
that higher offender rate within
that group.
What should we make of the
responsibility-based account of the
background injustice intuition? One
35
line of criticism that I want to lay
aside is that in order for the
account to be relevant to real-world
cases of racial profiling, it must
make implausible assumptions about
the collective responsibility of
non-profiled individuals for the
higher offender rate within the
profiled group.8 The objection I want
to raise can grant that the higher
offender rate within the profiled
group is indeed something for which
the non-profiled are collectively
responsible.
8 For this line of criticism see Risse (2007).
36
In my view, while one might
accept that the unjust
responsibility of those other groups
might place on them some sort of moral
liability, it is not clear that that
liability should amount to their
forfeiting the claim to protection that racial
profiling might fulfill. Lippert-
Rasmussen does accept that an
agent’s unjust responsibility might
allow him to retain claims to
protection against serious harms (e.g.
someone who spits in your face
retains a claim to your not shooting
him). Yet he does want to say that
37
that claim can be forfeited if the
harm it is a claim against is not
serious and this allows him to
conclude that it becomes reasonable
to reject profiling once the harms
it protects people against are
sufficiently small. My objection is
that liability needn’t take the form
of forfeiture of claims to
protection at all, be it against
serious or unserious harms. Why
might it not be something else that
the advantaged render themselves
morally liable for when they are
unjustly responsible for the
38
difficult social conditions of the
profiled, such as, for example, the
provision of adequate compensation
to the profiled for that injustice
in the form, say, of generous social
programs that might radically
improve their social condition? The
claim that the liability the non-
profiled must have is that of
forfeiture of protection against harm appears
arbitrary.9
9 My argument in this paragraph that what people are morally liable for need not be the consequencesof their exercises of responsibility (so that a group’s unjust responsibility for the higher offender rate among another group does not necessarily make the former liable to a higher exposure to crime perpetrated by the latter) is indebted to Olsaretti (2009).
39
3. Background injustice and
expressive harm
Another explanation for why
background injustice might render
racial profiling morally more
problematic focuses on the
expressive nature of racial
profiling. Racial profiling might be
more problematic when there is
background injustice because it
might cause harm by virtue of
‘expressing’ that injustice. Mathias
40
Risse and Richard Zeckhauser, who
propose this argument, put it as
follows: ‘[A]cts of profiling are
harmful because they make concrete
and real the fact of some people’s
unjustly inferior social standing;
they express the underlying injustice
of racism.’ (Risse and Zeckhauser
2004:146).10
Three points help to clarify the
notion of an ‘expressive harm’. The
first point is about the source of
10 While Risse and Zeckhauser believe that racial profiling can cause expressive harm they believe that the weight we should assign such harm can be overestimated and that it therefore does not stand in the way of the legitimacy of racial profiling ina significant range of cases. See Risse and Zeckhauser, ibid., pp. 143-150.
41
expressive harm. Most of what
accounts for the expressive
harmfulness of an action are the
distinct unjust practices in the
background that it expresses. Risse
and Zeckhauser give the example of a
Nazi march in a Jewish neighborhood.
Most of what accounts for why that
march is expressively harmful is the
historical fact of the Holocaust in
the background. The march would be
far less expressively harmful if the
Holocaust had never taken place.
A second point about the source
of expressive harm is that, while
42
there must be unjust actions in the
background that are being expressed
through a ‘foreground’ action, the
foreground action need not itself be
an unjust action. Risse and
Zeckhauser give the example of a
poorly organized shop where it takes
forty-five minutes to process
customers’ credit applications. A
white person will see this slow
process as straightforward
incompetence, whereas an African-
American, ‘may conclude that the
slow response was due to her race…’
(Risse and Zeckhauser 2004: 147).
43
Thus, the slow application process
is not itself an unjust action, but,
despite this fact, Risse and
Zeckhauser maintain that it is still
capable of causing expressive harm
because of its connection to unjust
actions in the background.
The third clarificatory point we
need to make about expressive harm
is about the nature of the harm
itself. Here I want to make explicit
a feature of expressive harm that I
believe Risse and Zeckhauser leave
implicit and which is crucial to my
discussion of their argument.
44
Expressive harm consists in certain
negative feelings on the part of
persons. To put this more carefully,
it consists in a welfare deficit in
persons caused by the presence in
them of certain unpleasant or
distressing feelings, the main part
of which is the feeling of
resentment. I will use ‘resentment’
in a rough way to refer to the full
range of negative mental states a
person might occupy as a result of
his perception that he is being
treated in a morally in appropriate
way. This feeling-based
45
interpretation of expressive harm is
to be contrasted with another
interpretation that might naturally
suggest itself, namely, one in which
a person is harmed by being
portrayed in an unfair and demeaning
way. These two interpretations are
clearly different: a person can be
unfairly portrayed without his
feeling any resentment about it and
a person can feel resentment at what
an action expresses even if it does
not portray him in an unfair way, or
even if does not portray him in any
way at all (the slow credit process
46
does not in any meaningful sense
‘portray’ people one way or
another).11 To sum up, I shall
interpret Risse and Zeckhauser as
using the word expressive in such a way
as to qualify a particular harm by
telling us the source of that harm,
where the harm consists of certain
negative feelings in persons, mainly
that of resentment, and where the
source is, specifically, unjust
background actions expressed in not-
11 That racial profiling can lead people to appear in a demeaning way is the basis of the humiliation-based account of the background injustice intuitionI develop in section 4. The humiliation-based account is thus a close cousin of the expressive harm account.
47
necessarily-unjust foreground
actions.12
If successful, the expressive
harm justification would provide us
with an independent reason to uphold
the background injustice intuition.
It might not entail that racial
profiling is always illegitimate.
Indeed, Risse and Zeckhauser go to
some lengths in order to show that
expressive harm should not stand in 12 That Risse and Zeckhauser define expressive harmin this way is suggested by their taking Randall Kennedy’s utilitarian assessment of racial profiling as their starting point in discussing of expressive harm. As they write (2004: 145): ‘In assessing the kinds of harm caused by profiling we follow Kennedy: the damage done seems to us well captured in terms of a feeling of resentment, senseof hurt, and loss of trust in law enforcement.’
48
the way of a significant range of
cases of racial profiling. But the
fact that racial profiling can cause
harm when it expresses background
injustice gives us an independent pro
tanto reason to morally discriminate
between racial profiling aimed at
whites and blacks, respectively.
The expressive harm
justification also helps us make the
background injustice intuition more
precise. It tells us that background
injustices need not be ongoing
injustices in order to cast moral
doubt on racial profiling: the
49
latter can express past injustices
as well as ongoing injustices (just
as a present-day Nazi march can
express the awfulness of the
Holocaust). Furthermore, and in
contrast to what is implied by the
responsibility-based justification,
it is not necessary that past
injustices be causally connected to
present-day racial profiling.
It is more difficult to say what
features are necessary, on the
expressive harm account, in order
for injustices to cast a moral
shadow over racial profiling. Stated
50
most generally, these are features
that make those injustices amenable
to being expressed by racial
profiling. More specifically, it
seems plausible that background
injustices must consist of some sort
of comparatively unfavorable
treatment of the same racial group
that is being racially profiled. So,
for example, while racial profiling
aimed at whites consists of
differential treatment by race, it
does not express past racist
injustices that were perpetrated
against blacks; those injustices are
51
expressed only by racial profiling
aimed at blacks.
Should we accept the expressive
harm account of the background
injustice intuition? As a first step
in our evaluation of that account,
it is helpful to see that the
account needs to be interpreted in a
particular way if it is to avoid
being redundant as part of the
justification of the background
injustice intuition. To see why it
might be redundant, suppose it is
the case that the resentment felt by
the profiled in a given case of
52
racial profiling accurately reflects
the fact that all independent moral
considerations that bear upon that
case count against it. Call this
type of resentment, accurate resentment.
Now, the fact that there might be
accurate resentment in a particular
case of racial profiling would play
an unnecessary role in our
evaluation of that case because the
independent moral considerations
that bear upon it already discredit
it. Consider, next, what we might
call cases of unreasonable resentment,
where the profiled have no
53
reasonable basis for feeling
resentment at being profiled (e.g.
suppose it is a case of profiling
that imposes minor inconveniences on
an otherwise justly treated group in
order to avert a grave danger to
innocent people). The fact there
might be unreasonable resentment on
the part of the profiled in such a
case should also play no role in our
evaluation of that case of
profiling.
In order to avoid being
redundant, the expressive harm
justification should therefore
54
maintain that the trouble with
racial profiling under background
injustice is that it can give rise
to resentment that is neither
accurate nor unreasonable. Let us
call the type of resentment,
resentment based in reasonable
misperception. This form of resentment
arises not because the profiled
accurately perceive that all
independent moral considerations
count against their being profiled.
It arises because they misperceive
how they are being treated, so that
it appears to them to be
55
unjustified, when, in fact, it is
not. Furthermore, this misperception
is reasonable, insofar as there is a
good deal of evidence in favor of it
and insofar as it would arise in
most ordinary people were they
similarly placed.
Let us interpret the expressive
harm justification so that it rests
on a concern with resentment based
in reasonable misperception. Would
it adequately justify the background
justice intuition? It is certainly
plausible to maintain that when
there is background injustice, the
56
profiled may reasonably misperceive
racial profiling as yet another
instance in which they are being
subjected to the attitudes that have
caused them injustice in other
contexts, such as, for example, the
racism they have had endure in the
distribution of jobs or housing.
Even though that perception would be
mistaken (remember, we are assuming
that racial profiling is unalloyed
and hence not driven by racist
attitudes), it might still be
reasonable, and the resentment it
might cause them to feel is surely a
57
reason for us to find racial
profiling under background injustice
morally troubling.
Nevertheless, I believe two
problems would remain with the
expressive harm justification even
once we have interpreted it as
resting on a concern with resentment
from reasonable misperception.
First, I do not think it would offer
us a complete justification of the
background injustice intuition,
although I concede that our
intuitions about this matter are not
unequivocal. If resentment based in
58
reasonable misperception alone
accounted for what is troubling
about racial profiling under
background injustice, then we should
not find racial profiling under
background injustice troubling in
cases in which the authorities have
sought to publicly affirm through a
broad and persistent information
campaign that there is no racism or
foul play behind their proposed use
of racial profiling. If, as we have
been assuming throughout, their
proposed use of racial profiling
would be unalloyed, then we might
59
have to conclude that any remaining
resentment at their proposed use of
racial profiling, after a prolonged
information campaign, would no
longer be reasonable and should not
be given any moral weight. Yet I
suspect that we would still
experience some moral discomfort at
the use of racial profiling under
background injustice even in such a
case. It might be replied, here,
that this is only because we suspect
that information campaigns don’t
reach everyone and not because there
are independent grounds for concern
60
apart from the reasonable
misperceptions of the profiled. But
I suspect that even in the unlikely
scenario in which all of the
profiled are convinced that there is
no foul play behind a given use of
racial profiling, we would still be
more concerned if they belonged to a
racial group that had suffered, or
are suffering, systematic injustice
in other contexts, than if they
belonged to a racial group that has
been treated justly.
A second problem with justifying
the background injustice intuition
61
on the basis of resentment from
reasonable misperception is that it
does not uphold what I believe is a
central part of that intuition. When
we worry about racial profiling
aimed at groups of people who are
subjected to background injustice
our worry is focused not only on the
possible misperceptions those groups
might have of the way in which they
are being treated, but also about a
wrong that they accurately perceive
as being present in the way in which
they are being treated. The
intuition is that their resentment
62
is what I earlier called ‘accurate
resentment’, that is, that it has as
it source an independent moral
wrong.
In the next section, I set out
an alternative account of the
background injustice intuition that
identifies that moral wrong.
4. Background injustice and
humiliation
A common concern about racial
profiling is that it can humiliate
63
people who are exposed to it. In
this section, I want to sketch an
alternative account of the
background injustice intuition that
builds on that concern. I want to
argue that background injustice
makes racial profiling more
humiliating and that this fact
provides a powerful reason to
refrain from it. To develop that
claim, I will first make some
general remarks about what I mean by
someone’s being humiliated.13
13 My thoughts in this section have benefited from Velleman (2001).
64
By ‘humiliation’ I shall
understand the condition in which a
person is unable to prevent
appearing to others in a demeaning
way. There are thus two necessary
conditions for humiliation: a
demeaning appearance that one is
unable to prevent. It is not
humiliating for someone, for
example, if her friend announces to
others, without her permission, that
she has just won a humanitarian
award. That might be a reason to
feel annoyed, but not humiliated,
for it does not expose her in a
65
demeaning way.14 But humiliation also
requires that one unable to prevent
how one. It is not humiliating, for
example, for someone to disclose to
others that she is an alcoholic if
this is something she believes she
needs to do in order to live a more
authentic life. That humiliation
involves both necessary conditions
14 When I say that a person should not appear in a ‘demeaning way’, I mean subjectively demeaning, or, in other words, that what counts as a demeaning appearance for the purpose of establishing whether someone is humiliated is what that person herself would consider demeaning. For example, it would be humiliating for a teenager who wants his friends tosee him as a ‘tough guy’ if his mother told them that he is in fact a very sweet and considerate young man who likes to look after rabbits. Even if there is nothing wrong with being sweet and considerate, this teenager has still been humiliated by his mother because she has made him appear in a way that he himself finds demeaning.
66
fits with our judgments about
typical cases. Think, for example,
of an elderly person who is left
naked on a hospital bed in full view
of members of the public who happen
to be visiting other patients; or
think of a pupil whose spelling
mistakes are displayed by his
teacher to the whole class. Both are
cases of humiliation because they
involve persons who lack control
over the fact that they appear to
others in ways that are demeaning.
Racial profiling under
background injustice can humiliate
67
the profiled because puts them in a
situation in which they cannot
prevent onlookers seeing them in
demeaning ways. On this account,
racial profiling is not always
humiliating because it does not
always affect how others see those
who are profiled. There are at least
two reasons for this. First,
sometimes racial profiling is used
in settings that are not visible to
onlookers. Consider, for example,
the case of tax inspectors who must
decide whose tax papers they should
review. It seems fair to say that
68
racial profiling by tax inspectors
is not humiliating.
But, secondly, and more
relevantly for our discussion,
sometimes the persons profiled
belong to a group of persons whose
public persona is so securely in
line with how they would like to be
seen that profiling them would not
lead onlookers to see them any
differently. The standard perception
of them is so stable that onlookers
would make some other assumption
about the reason for their being
profiled than those that involve
69
seeing them in an unwanted light. I
believe that is a large part of the
explanation for why we are much less
uncomfortable with racial profiling
when it is aimed at white people.
When white people are profiled
onlookers do not as easily assume
that those who are stopped are
likely to be criminals. They are
more likely to assume that they are
just innocent people who are being
detained as a matter of bureaucratic
routine. And that, in turn, is why
white people are more likely to feel
only bemused or annoyed as a result
70
of being racially profiled, rather
than humiliated.
But when there is background
injustice, racial profiling is more
likely to lead others to see members
of the group who are profiled in a
negative and unwanted light. The
process by which background
injustice has that affect on an
onlooker’s perception of the
profiled is difficult to describe
precisely. One part of the process
relates to the fact that background
injustice will have deprived the
profiled group of the ability to
71
present themselves to other groups
as the ordinary people they are – at
school, in the workplace, in the
neighborhoods in which they live. It
is thus more difficult for an image
of normality to attach to them in
public culture, which might, in
turn, restrain onlookers from seeing
any given member of that group who
is stopped and searched as a
criminal. Another part of the
process relates to the fact that
background injustice can lead
onlookers to make the assumption
that individuals who belong to that
72
group have more reason to commit
crime. There may be other aspects of
the process whereby background
injustice negatively affects the way
in which the profiled appear to
others when they are visibly
selected out for investigation, but
the two aspects mentioned so far
give us enough reason to hold that
racial profiling under background
injustice can indeed humiliate those
who are profiled.
Let me now consider an objection
to the humiliation-based account as
I have been setting it out here.
73
This is the objection that unalloyed
racial profiling under background
injustice is not humiliating, as
there is, in fact, a third condition
that is necessary for humiliation
that it does not fulfill. To be
humiliated a person’s unwanted
appearance must reveal a feature of
a person that she actually
possesses. For example, it might
said that it is central to the
humiliation of the pupil whose
spelling mistakes are displayed in
front of the whole class that those
were indeed his spelling mistakes. If
74
the teacher had mixed up his
spelling mistakes with someone
else’s, the pupil would not feel
humiliated. If that is so, then
racial profiling cannot be
humiliating, at least when it is
used to investigate innocent people,
because the feature it makes others
perceive them to have – criminality
– is one that they do not, in fact,
possess.
My response to this objection is
to dispute the claim that
humiliation consists in the unwanted
revelation of an actually possessed
75
feature. It is true that many cases
of humiliation involve the
revelation of an actually possessed
feature of a person, but that is not
surprising since many of the
unwanted ways in which we can appear
to others do display features we
actually possess. But the relevance
to humiliation of a person’s
actually possessed features is
explained entirely by the fact that
they can form part of an unwanted
appearance and not that they are
actually possessed. To go back to my
previous example, the reason the
76
pupil to whom the teacher mistakenly
attributes spelling mistakes is not
humiliated is not that they are not
his spelling mistakes but that he can
easily correct the teacher’s
unwanted portrayal of him. If he
couldn’t do that, then I would say
the teacher’s mistaken portrayal of
him is indeed humiliating. It can be
humiliating, for example, to be made
to look ignorant or crude or cheap
and to have no way of undoing that
impression, even if one is not
ignorant, crude or cheap. What
matters for humiliation is only that
77
one lack control over the fact that
one is made to appear in a way that
one finds demeaning prefers not to
appear.
The humiliation-based account of
the background injustice intuition
provides an independent reason for
why background injustice renders
racial profiling problematic. It
shows us that racial profiling under
background injustice is problematic
even if it is unalloyed racial
profiling. Racial profiling can
humiliate people even if it the case
that the police are utterly devoid
78
of racist attitudes when they stop
and search members of a particular
racial group. As we know from other
contexts, a person can act in a way
that humiliates another even if his
intentions are perfectly well
meaning (A nurse might have left an
elderly person naked because of the
sweltering heat, while neglecting to
draw the curtain.) The same can be
said about the other standard
reasons that apply to racial
profiling: they can all be absent
from a given use of racial profiling
and that use can still humiliate.
79
The humiliation-based account
also helps us render the background
injustice more precise. First, it
tells us that the relevant
background injustice that casts
moral doubt on a given use of racial
profiling must be of the sort that
encourages onlookers to negatively
perceive individual members of that
group who are being stopped and
searched. A society that fails to
allow a particular group of its
citizens to depict themselves as
ordinary people and that places them
in difficult social conditions is
80
likely to encourage others to
perceive them as criminals when they
are stopped and searched by the
police. Those societal failures need
not still be present – so background
injustice need not be ongoing. What
matters is whether their negative
effects on the standard perception
others have of the profiled group
persists. Secondly, the humiliation-
based account also tells us that not
all cases of racial profiling under
background injustice are equally
problematic. In particular, if
racial profiling is used in a non-
81
public setting, it is considerably
less problematic than if it used in
a public setting.
Conclusion
My aim in this paper has been to
determine whether background
injustice is relevant for
determining the moral status of a
given use of racial profiling. I
have argued that two accounts of its
relevance are problematic. The
responsibility-based account is
problematic insofar as it assumes
82
that background injustice can lead
non-profiled groups to forfeit their
claims to protection against crime,
and thereby render the rejection of
racial profiling reasonable. That
assumption is less plausible, I
believe, than the alternative
assumption that they forfeit their
claims to resources that need to be
transferred to the profiled so as to
eliminate the background injustice
they suffer from. The expressive
harm based account is incomplete
insofar as it suggests that the
problem with racial profiling under
83
background injustice is that it can
cause the profiled to feel
resentment due to a reasonable
misperception on their part that
they are being treated in a morally
inappropriate way. I believe it is
also a part of the background
injustice intuition that the
resentment of the racially profiled
is based on an accurate perception
on their part of a moral wrong that
racial profiling perpetrates against
them.
The humiliation-based account of
the background injustice intuition
84
avoids these difficulties: it does
not make a controversial assumption
about the forfeiture of claims to
protection against crime and it
allows us to explain why the
resentment the profiled feel when
they are subjected to racial
profiling is based on a genuine
wrong that is perpetrated against
them. Individuals who are subjected
to racial profiling in a context of
background injustice are humiliated:
they are placed in a situation in
which they cannot prevent appearing
to onlookers in a demeaning way.
85
While I have not claimed that that
this feature of racial profiling
under background injustice renders
all uses of it illegitimate, I
believe it weighs heavily against
racial profiling and should lead us
to refrain from it in all but the
gravest of circumstances.15
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