This discussions will focus on Dr Pundik's observations about racial profiling. Nicholas Lennings will respond to the talk, following which we will invite questions from the audience.
Abstract: A police officer sees a suspicious bulge in the pocket of a passing pedestrian and deliberates whether to stop and search: while the bulge is not necessarily a proof of carrying an illegal firearm, it is certainly a legitimate indication. The pedestrian is also a young, black man and from past searches and convictions the police arguably knows that such men are much likelier than other people to carry an illegal firearm. Should the police officer be instructed to take this information into account? The issue is not limited to policing, as some Muslims who are regularly selected for an “enhanced security check” at airports could testify. Nor is it necessarily limited to searching for weapons and bombs: if one day the tax authority notices that Jews are much likelier to cheat on their tax reports, should more Jews be selected for random investigation? This paper seeks to expose the following problem with racial profiling, arising from its reliance on the following type of inference: from the individual’s membership of a certain racial group, the searcher is invited to infer that he is likelier to exhibit some culpable behaviour. The paper seeks to show that such an inference to culpable behaviour requires contradictory presuppositions about the freedom of the suspected behaviour. On the one hand, racial profiling ought to presuppose that the individual suspect’s behaviour is unfree because the inference it involves takes the suspect’s behaviour to be determined by his race, age and gender, none of which is within his control. On the other hand, similarly to criminal trials, search practices also ought to presuppose the exact opposite: that the individual is free to determine her own behaviour. If the suspected behaviour is free, the involved inference to culpable behaviour is not probative of the individual suspect’s behaviour so profiling methods which rely on it are useless. And if the suspected behaviour is unfree, the inference is probative but the suspect is not culpable and should thus not be put to trial, whatever the profiled-search yields. Unlike existing objections, the argument focuses on the epistemic qualities of racial profiling rather than on its social costs: racial profiling is unsuitable for the police and other security forces to adopt because it is irrational. Nevertheless, since deploying irrational means has substantial costs under any theory of social costs (e.g. by affecting the means’ effectiveness, legitimacy or public perception), the paper is also relevant to any cost-benefit analysis of racial profiling.
About the Speakers
Dr Amit Pundik is a Lecturer in Law at Tel Aviv University. He wrote a doctorate on the connection between free will and statistical evidence, under the supervision of Professor John Gardner and Professor Adrian Zuckerman. After two years in Oxford he crossed the lines to the University of Cambridge, where he took up a position of Lecturer and Fellow of Hughes Hall. After more than six years in England, Amit returned to Israel and joined the Buchmann Faculty of Law at Tel Aviv University. His research interests are evidence and proof, causation, free will, consent and sexual offences.
Nicholas is reading for a D Phil in Law at the University of Oxford. His thesis concerns how the law receives and deals with statistical evidence, principally in civil proceedings. He has completed a Bachelor of Arts-Psychology and Bachelor of Laws at Macquarie University, Australia, and a Master of Laws at the Harvard Law School. He previously practised as a solicitor in New South Wales, Australia.