Legal Ramblings
[ Tuesday, November 29, 2005 (5:40 PM) ] ( link )
Comment: To the horror of legal academics everywhere, I've published a comment in the most recent issue of the Yale Law Journal, entitled "The Secret Ambition of Racial Profiling." (Download it here [PDF].) Here is the abstract (essentially the Comment's introduction): In 2000, a year after the shooting of Amadou Diallo, a select committee of the New York City Council held a series of meetings in the Bronx to address police-community relations. The committee intended the meetings “to open a dialogue between police officers and city residents, perhaps even repair relations,” but the first meeting degenerated into a torrent of accusations from over two hundred attendees on police mistreatment of African-Americans. “[O]ne resident after another relat[ed], with a mixture of passion and anger, humiliating encounters with the police” that they attributed to their race. By the end, police officers could do nothing but sit quietly and hear out the people they were supposed to serve.
The meeting failed for a simple reason: The committee placed too much faith in the power of open dialogue and overlooked the bitterness then underlying any discussion of police-minority relations. A similar problem afflicts R. Richard Banks’s Beyond Profiling: Race, Policing, and the Drug War, which criticizes the current debate over racial profiling for focusing too much on profiling’s alleged irrationality. For Banks, the argument that racial profiling is irrational is mere masking rhetoric, obscuring underlying grievances about the consequences of profiling for minorities and minority communities. Banks urges opponents of racial profiling to debate these grievances openly rather than cloak them with claims of irrationality.
This Comment argues that Banks does not properly take into account the dangers of open dialogue. Dan Kahan pointed to these dangers six years ago in The Secret Ambition of Deterrence, which argued that masking rhetoric is sometimes necessary to avoid conflicts over controversial topics. After providing background on the two articles, I argue that the debates Banks wants us to have about racial profiling are prone to the types of value conflicts that Kahan identified in Secret Ambition. I conclude that progress is possible if we forego Banks’s contentious debates: The current rhetoric on racial profiling, despite its many weaknesses, enables us to make limited but important reforms.
You should soon be able to get it on Westlaw or Lexis at 115 Yale L.J. 491 (2005).
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