Tag: racial profiling

DEA ‘Cold Consent’ Encounters Constitute Federal Stop-and-Frisk

Over at Forbes, the Institute for Justice’s Nick Sibilla details a new report from the Department of Justice concerning the Drug Enforcement Administration’s practice of cold-stopping travelers at airports, bus stations, and train stations and asking to search their property looking for forfeitable assets.

Federal drug agents may be racially profiling and unjustly seizing cash from travelers in the nation’s airports, bus stations and train stations. A new report released by the Office of the Inspector General for the U.S. Department of Justice examined the Drug Enforcement Administration (DEA)’s controversial use of “cold consent.

In a cold consent encounter, a person is stopped if an agent thinks that person’s behavior fits a drug courier profile. Or an agent can stop a person cold “based on no particular behavior,” according to the Inspector General report. The agent then asks the people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant.

While many people who believe they have nothing to hide may–inadvisably–consent to a police search, they may not be familiar with federal civil asset forfeiture laws, which give federal agents wide latitude to seize property, especially cash, without charging anyone with any crime. Sibilla notes that the DEA agents even go so far as to carry affidavits for search targets to sign disclaiming any rights to the property being seized. 

Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and “waiving their rights.” In one cold consent encounter, DEA agents stopped another African-American woman in part because she was “pacing nervously” before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.

Distrust of Justice System also Affects Black Americans’ Views on Public Health Measures

The Washington Post’s Wonkblog “interviews political scientists Jon Hurwitz and Mark Peffley about their book on how blacks and whites perceive the criminal justice system, and what it implies for Trayvon Martin’s death, George Zimmerman’s acquittal, and the aftermath.” An excerpt, quoting Hurwitz/Peffley:

We asked whether it’s a “serious problem” in their community that police “stop and question blacks far more often than whites” or that police “care more about crimes against whites than minorities.” On average, 70 percent of blacks, but only 17 percent of whites, considered these serious problems…[W]hile about 25 percent of whites disagreed with the statement that the “courts give all a fair trial,” more than 60 percent of African Americans disagreed. Repeatedly, using every possible barometer, we found that blacks doubted the fairness of the justice system much more than whites…

Much of the difference comes down to either personal or vicarious experiences that people have with police and the courts. We found that African Americans, especially younger black men, were far more likely than whites to report being treated unfairly by the police because of their race. In fact, a recent Gallup Poll found that one of every four black men under age 35 said that the police have treated them unfairly during the last 30 days.

This excerpt reminded me of a data point I included in the health care chapter I wrote for the Encyclopedia of Libertarianism:

A 2004 survey published in the journal Health Affairs hints at one way [public-health] powers could be abused. Amid widespread concern about bioterrorism, roughly equal shares of white and black Americans expressed support for quarantines to contain a serious contagious disease. When subsequently asked whether they would support a compulsory quarantine, where the authorities would have the power to arrest violators, 25% of whites changed their minds, whereas 51% of blacks did, indicating an awareness that these policies would not necessarily be fairly implemented.

It also reminded me of this John McWhorter speech, reprinted in the Winter 2011 issue of Cato’s Letter, where he argues the war on drugs is behind “the strained relationship between young black men and police forces,” and racial progress requires ending the drug war.

Civil Liberties After Boston—My Take

It’s to be expected that privacy will suffer a bear market after a terrorist attack or attempt. I’ve seen worse, of course, but was concerned this week to read a piece by Richard Epstein on the Hoover Institution web site that I think sounds needless anti-privacy notes. Professor Epstein is not only an important public intellectual, but a Cato adjunct scholar of which we’re proud, and a friendly professional colleague (to whose defense I’ll leap when he’s wronged).

The issue is what policies governments might adopt toward the end of terrorism prevention. Professor Epstein finds the statement of Massachusetts state senator Robert Hedlund (R-Weymouth) to be a bridge too far. Hedlund says:

It’s not surprising that you have law enforcement agencies rushing out to use [the Boston bombing and subsequent manhunt] as pretext to secure additional powers but I think we have to maintain perspective and realize that civil liberties and the protections we’re granted under the Constitution and our rights to privacy, to a degree, are nonnegotiable…

You don’t want to let a couple of young punks beat us and allow our civil liberties to be completely eroded. I don’t fall into the trap that, because of the hysteria, we need to kiss our civil liberties away.

Professor Epstein calls that “dead wrong,” saying, “the last thing needed in these difficult circumstances is a squeamishness about aggressive government action.” Given the importance of preventing terrorism, claims of right against increased surveillance and racial or other profiling should be “stoutly resisted,” he says.

I agree with Professor Epstein that flat claims about a “right to privacy” shouldn’t limit surveillance. “Concern” with racial or ethnic profiling is not a sound basis for desisting from the practice. But I don’t take Hedlund’s statement to be a product of squeamishness, and I think it is in the main correct.

Where I think Professor Epstein goes wrong insofar as he wants law enforcement to have its way is in setting aside “technical difficulties” and “means-ends” questions as peripheral. For me, the Fourth Amendment’s bar on unreasonable searches and seizures demands coordination between means and ends in light of the technological situation (both in terms of doing harm and discovering it). It is not a given that government action is reasonable, and no amount of priority given to a threat makes an incoherent response reasonable and constitutional.