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

Reference list

Cohen, G. A. 1992. Incentives,

inequality and community. In The

Tanner Lectures in Human Values 13, 15 I would like to thank the following people for their helpful comments on this paper: Ian Carter, Andrea Sangiovanni-Vincentelli, Serena Olsaretti, and the participants at the 2009 Copenhagen conference on ‘Racial Profiling’

86

ed. G. B. Peterson, . Salt Lake

City: University of Utah Press. 263-

329.

Harcourt, Bernard. 2007. Against

Prediction: Profiling, Policing, and

Punishing in an Actuarial Age.

Chicago: University of Chicago

Press.

Lippert-Rasmussen, Kasper. 2006.

Racial Profiling Versus Community.

Journal of Applied Philosophy 23:

191-205.

Olsaretti, Serena. 2009.

Responsibility and the Consequences

87

of Choice. Proceedings of the Aristotelian

Society 109: 165-188.

Risse, Mathias. 2007. Racial

Profiling: A Reply to Two Critics’,

Criminal Justice Ethics 26: 4-19.

Risse, Mathias and Richard

Zeckhauser. 2004. Racial Profiling.

Philosophy and Public Affairs 32:

131-170.

Velleman. J. David. The Genesis of

Shame. Philosophy and Public Affairs

30: 27-52.

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