When Doesn’t Racial Profiling Count as Racial Profiling?
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Guest post by Philip Kretsedemas, Associate Professor of Sociology, College of Liberal Arts, University of Massachusetts Boston, and author of author of Migrants and Race in the US(Routledge, 2013).This post is the seventh instalment of the Border Criminologies Themed Week on Race and Border Control organised by Prof Yolanda Vázquez.
If you think race has absolutely nothing to do with border control, you’ll be hard pressed to explain what happened to the new rules designed to curb racial profiling that were proposed by US Attorney General Eric Holder in December 2014. Holder’s initial vision was to have all branches of federal enforcement covered under the new rules, but his proposal ran aground on one sticking point—border patrol. The Department of Homeland Security (DHS) agreed to apply the new rules to some forms of interior immigration enforcement. The DHS didn’t even have a problem extending the new rules to investigations of potential security or terrorist threats, but it declined to extend Holder’s new rules to enforcement actions within 100 miles of the border and other ports of entry.
In a nutshell, the DHS’s argument is that the demographic reality of unauthorized migration makes the ban on profiling impractical. It’s well known that most unauthorized migrants are Latin American nationals and that most of these individuals enter the US through its southern borders. Furthermore, it’s usually not possible to establish the facts of someone’s legal status until an enforcement officer asks to see their papers. And what criteria might a federal agent use to determine whether they should ask to see someone’s papers? They often end up using circumstantially defined racial profiles: Did they run across person X in the vicinity of an area that is known for unauthorized border crossings? And does person X look and act like most of the people they’ve apprehended for unlawful entry?
The legal precedent for this argument can be traced to the Supreme Court decision in US v. Brignoni-Ponce (1975), which defended the use of profiles based on ‘Mexican appearance’ for the purpose of border control. It’s worth noting that the Brignoni-Ponce decision was framed as a compromise between an indiscriminate endorsement of racial profiling and interrogations that were informed by some measure of reasonable suspicion. Furthermore, it did not positively endorse racial profiling so much as it declined to positively disallow it as an option that border agents could use at their discretion, in combination with other possible indicators of unlawful presence. The rule of thumb allowing for profiling within 100 miles of the US border is one of the practical results of this compromise position. So, if you’re viewing things from a ‘glass half-full’ perspective, you could argue that the Supreme Court’s decision could have turned out a lot worse for Latinos than it did.
The important point about Brignoni-Ponce, however, is that it’s premised on the understanding there most definitely are racial profiles that can be used to make distinctions between ‘legal residents’ and ‘illegal aliens.’ And in its objection to Eric Holder’s new rules, the DHS acknowledged that it would be unreasonably restrictive to impose an all-out ban on the use of these profiles. So if the DHS is arguing that it cannot effectively police the US-Mexico border without allowing its enforcement agents some discretion to use profiles based on ‘Mexican appearance,’ is it plausible to insist that there isn’t a racial dimension to US immigration policy, and that race and legal status are completely unrelated things?
Credit: Wikipedia
This is, of course, a rhetorical question. But it also raises a number of other questions which cannot be resolved in the space of this blog post. Unfortunately, critical race studies has to spend so much of its time justifying its very existence, that it gets reduced to making the same deceptively simple argument over and over again: ‘but race still matters… really it does!’ The more important question to answer, however, is why race still matters, and this question can be answered in more than one way.
For an illustration, let’s return to the Brignoni-Ponce decision. It so happens that the Supreme Court’s argument in this decision drew heavily on the precedent established by Terry v. Ohio (1968) which affirmed the discretionary authority of police officers to question and frisk suspects without probable cause. The legal rationale for the ‘Terry frisk’ played an important role in institutionalizing the racial profiles that have disproportionately targeted African American males for drug offenses over the past several decades. In this light, you could argue that Brown and Black racial profiling have been shaped by the same legal history, which means that Black and Brown racial profiling are just different versions of the same problem. This argument isn’t entirely baseless, but neither is it entirely true.
Let’s not forget that the federal government has just made an official distinction between these two types of racial profiling. Regardless of what you think about this distinction, it’s still important to consider the rationale—which is Kafkaesque more so than supremacist. We’re presented with one kind of racial profiling impacting natives and legal residents that’ll no longer be tolerated, which is being juxtaposed against another kind profiling that we have to tolerate because it’s used to rid the US of people who ‘don’t belong here’ anyway—despite the fact that this second kind of racial profiling will inevitably target some natives and legal residents, considering that over seventy percent of the US Latino population are native born or naturalized citizens.
The distinction between these two types of profiling is informed by a territorial commonsense that associates Mexican/Latino appearance with people whose legal status (or lack thereof) places them outside the scope of the nation’s territorial sovereignty―and moral responsibility. Although it may be tempting to see this territorial distinction as a novel development in US racial discourse, this is not actually the case. There’s a body of US jurisprudence that goes back to the 1860s which made similar distinctions between native and foreign minorities, and was used to exclude Mexican and Chinese immigrants from Constitutional protections prohibiting racial discrimination. If you’re so inclined, you can trace these kinds of distinctions even further back, to the formative period of the early-modern state.
The root of this problem doesn’t have to do with divergent perceptions of Blacks versus Latinos because these perceptions can change according to the racial lens you’re using. There are Black Latinos (and Brown Latinos) who experience forms of racial profiling that are indistinguishable from the type experienced by Black natives (who aren’t Latino), and there are Black immigrants who are treated like racialized foreigners, and it’s also possible for some Latinos to be whitened in the popular imagination and constructed as ‘more desirable’ than Black natives. But rumbling underneath these complexities there’s something else: a territorial commonsense which can be used to make distinctions between populations that are understood to be ‘lead players’ in the history of the US, and other populations that have no claim to this history―and these distinctions are easily encumbered by racial and cultural stereotypes about what a ‘real American’ looks and acts like.
This territorial commonsense also leads some forms of racial inequality to be seen as uniquely American in character and origin. These inequalities are presumed to fall under the sovereign authority of the nation-state and are resolved within the territorial confines of the US by absorbing all of its citizen-subjects more equally under a body of national law (exemplified by the legal victories of the Black civil rights movement). But there are other inequalities that raise questions about the way the nation-state has been constituted as a territorial entity. For example, why are national borders more permeable for some populations than others? Why are some migrants recruited in a way that make them more easily removable than others? How do we explain why the overwhelming majority of migrants deported from the US are nonwhite? And why is that most of these nonwhite deportees can be racially distinguished from ‘native Blacks’? How did this field of racial visibility come to be? And what does this tell us about the ways of seeing that are defining commonsense ideas about immigration in the US today? These questions challenge us to think about how arguments about the continuing significance of race apply to immigration. They also urge us to think about how nation-centered assumptions about all sorts of things―race, the economy, political authority, cultural networks, etc.―limit our ability to understand the scope of the problems we’re trying to solve.
I understand that this is a daunting challenge. One reason why the analysis of race and immigration is so underdeveloped, even today, is because it complicates too many things for too many people. It’s much easier to say that immigration and border control have nothing to do with race, or that race is an entirely national affair, defined by a history of conflict and oppression involving white and black populations. It’s not so easy to say—at a time when the legitimacy of critical race studies is still being questioned—that race matters for immigration studies, but in a way that even critical race scholars are struggling to understand. We aren’t just dealing with the intersection of race and legal status, but with territorial dynamics expressed through multiple, overlapping histories of race that impact minority populations in qualitatively different ways.
Taking race seriously means being willing to see these differences so we can explain why the profiling of ‘foreigners’ can be cast in such a different light than the profiling of ‘natives’—but without ignoring their continuities, and without allowing their differences to harden into divisive distinctions. Yes, there are a lot of moving parts to account for, but there are problems we’ll never be able to recognize, much less solve, until we’re prepared to grapple with this level of complexity.
Wednesday, 15 April: When Doesn’t Racial Profiling Count as Racial Profiling? (P. Kretsedemas)
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How to cite this blog post (Harvard style):
Kretsedemas P. (2015) When Doesn’t Racial Profiling Count as Racial Profiling? Available at: http://bordercriminologies.law.ox.ac.uk/racial-profiling/ (Accessed [date]).
