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This seminar, led by Dr. Ben O’Neill from the University of New South Wales, delves into the complexities of discrimination and equality before the law, particularly focusing on demographic profiling. It examines how demographic characteristics such as race, sex, and age are utilized in law enforcement for both detection and sanction enforcement, leading to rational discrimination. The discussion highlights patterns in law enforcement that can exacerbate issues related to civil rights, particularly in the context of prohibition laws and the TSA's practices since September 11.
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Mises Seminar, 29-30 November 2013, Brisbane, Australia Dr Ben O’Neill, University of New South Wales Discrimination and Equality before the Law
Demographic Profiling • Demographic profiling occurs whenever demographic characteristics (e.g., sex, race, age) are used as factors to inform detection of lawbreaking or the enforcement of sanctions. • Rational discrimination can occur in this context. Various groups are more/less likely to take some prohibited action.
Demographic Profiling • Detection of lawbreaking: In this case there can be rational discriminationbased on demographic characteristics. • Enforcement of sanctions: In this case any use of demographic characteristics would mean that a different legal standard is applied across different groups.
Demographic Profiling Who is carrying weed?
Demographic Profiling Who is carrying a Spiderman comic book?
Demographic Profiling Who is carrying a fountain pen?
Demographic Profiling • Discrimination in detection (rational): Use demographic characteristics to help our inference about who is taking some action. • Discrimination in enforcement (irrational): Use demographic characteristics to decide on the sanction for a prohibited action.
Demographic Profiling He is more likely to be carrying weed...
Demographic Profiling ...but if she has weed, it is the same act.
The Pattern • The legal system for detection/enforcement: • Government authorities have control over the sanctions for lawbreaking; • Many of the laws they enforce are for “victimless crimes” where there is no complainant; • Wide powers (for detection and enforcement) are granted to government authorities.
The Pattern • The position of government agents: • Agents of the authority are incentivised to use this power to obtain arrests and convictions; • These agents rationally target groupsmost likely to yield arrests and convictions; • They avoid antagonising groups that are able to mount effective complaints and pressure; • They discriminate by race, sex, age, etc.
The Pattern • What happens next: • The targeted groups complain of being “profiled”(e.g., breaches of civil rights, etc.); • Instead of challenging the underlying powers, discrimination is blamed for the problem; • To solve the problem, the excessive power is now widened and applied indiscriminately.
The Pattern • The problem is “solved” – the result: • The enforcement authority now applies excessive powers widely and indiscriminately; • The population at large are subjected to wide sweeping powers, and become inured to this; • The detection methods are now also ineffective, since application is too indiscriminate; • Call for more powers to remedy this.
Blaming discrimination • It is common for people to complain about these policies, saying that the problem with them is discrimination. • Rational discrimination therefore gets the blame for an underlying bad system. The implication in some cases is that abusive power is less bad if applied indiscriminately.
Blaming discrimination • This kind of situation tends to arise most in the context of ‘prohibition’ laws. These laws criminalise possession of certain goods, and there is no complainant. • Rational discrimination based on sex, race, etc., tends to occur more in cases where the decision-maker has less direct information.
Blaming discrimination • This means that discrimination will tend to be most effective, and most practiced, where: • The underlying law relates to some action which is non-violent (and therefore not easily detected); • There is a large differential in the relevant action among different demographic groups; • The requirements for searches and enforcement are broad, and do not require specific evidence.
The Pattern • Introduce new broad powers: After Sept 11 the TSA were formed and granted powers to search and detain aircraft passengers. • The ostensible goal for this was to prevent terrorism by making it harder for a person to board a plane carrying a weapon.
The Pattern • Incentives for govt agents: TSA agents are incentivised to be risk-averse. Their powers do not require any ‘probable cause’. • There is little penalty for excessive caution. TSA agents do not bear the cost of delays from their activities, but they fear letting someone through with a weapon.
The Pattern • Targeting high-yield groups: Initially these searches were mostly targeted at Middle-Eastern men, especially young men. • Complaint of unequal treatment: This led to complaints of unfairness to Middle-Eastern men and Muslims in general. Allegations of racism and religious discrimination.
The Pattern • Indiscriminate application: To counteract allegations of racism, etc., the TSA began to expand its searches to include more low-risk groups (e.g., children, elderly, disabled). • Absurd searches serve to show that TSA is not “profiling”, and therefore it is respecting equality before the law – Hooray!
The Pattern • Ineffective enforcement: Concentration on low-risk groups makes the whole exercise less effective as a means of detecting terrorists. • Large amounts of resources/manpower is devoted to searching low-risk targets. This is the “security theatre” that is now adopted.
The Pattern • Introduce new broad powers: New York has had wide police powers to ‘stop and frisk’. Use of the powers increased over 2003-2013. Justification for stops are often dubious. • The goal for this power is to prevent illegal carrying of firearms and other prohibited goods. Not much evidence of success.
The Pattern • Incentives for govt agents: Police need to get their arrest statistics up. Stops and frisks are used as a performance metric, as are positive results (arrests, convictions, etc.) • Police officers are incentivised to target high-yield groups, particularly young black men. This gives them more positive results.
The Pattern • Targeting high-yield groups: Stop and frisk is applied to young black men, and then to young men in general. • Complaint of unequal treatment: This has led to complaints of unfairness to blacks and allegations of racism and racial profiling.
The Pattern • Indiscriminate application? Presently the policy is under attack and the government has promised unspecified reforms. • It is not yet clear whether the reform will reduce police powers, or simply attempt to apply them more indiscriminately.
The Libertarian Solution • No victimless crimes: A libertarian system would not recognised prohibitions of goods existing in our present society. Many of the laws relating to these things would not exist. • All crimes would have a genuine victim who would act as complainant and have the discretion over enforcement.
The Libertarian Solution • Detection of crime: Different agencies would compete to detect and solve crime effectively by using the most rational procedures. • Rational discrimination would occur in the detection of crime, but would be diminished. Most detection would involve more direct evidence of criminal action.
The Libertarian Solution • Equality before the law: This is recognised as a fundamental principle of libertarianism – the law applies equally to all. • Detection and investigation of lawbreaking is governed by the same principles. Agencies that do this do not have any special powers or immunities from relief.
The Libertarian Solution • If an enforcement agency engages in wide unjustified searches it pays a penalty. The wider the searches the bigger the penalty. • Agents are therefore incentivised to detect and solve crime while minimising the number of false positives.
The Libertarian Solution • Discrimination in detection of lawbreaking would be reduced, since it would not apply in such a wide range of situations. • Discrimination in enforcement would be at the discretion of victims of crime. There would be no single agency controlling this.
