Is the Profiling Charge Trivial?

Steve Hays of Triablogue: Victor Reppert has made a shocking discovery. Thankfully, it took a man of his philosophical acumen to ferret this out. Reppert just discovered that laws disproportionately impact lawbreakers. Yes, you heard me right. Laws discriminate against outlaws. They have the insidious potential to single out non-law abiding citizens.

For example, laws against drunk driving single out drivers. By contrast, laws against DUI don’t profile joggers or swimmers–only drivers.

It’s appalling that in this day and age we still have such pernicious laws on the books. Time to stage a protest. Riot in the streets.

My reply: Hence, if a law is typically broken by a certain group, that group will on one level be disproportionately affected by the law. So the mere fact of disproportionate impact doesn't show that there is any invidious profiling.

However, it is possible that a law might have a disproportionate impact of one group as opposed to another that affects people who don't break the law. In other words, if a law, say, the law against illegal border-crossing, is violated by Hispanics far more than any other group, then if we try to catch them, there will of course be a completely benign disproportionate impact.

However, that doesn't dispel all objections to profiling, as some people seem to think that it does. It might turn out that a law not only affects law-breaking Hispanics, but also law-abiding Hispanics. If, let's say, the Maricopa County Sheriff were to perform a "crime sweep" in largely lower-class Hispanic areas as a sort of fishing expedition for illegal immigrants, using other statutes as a pretext for making stops that might lead to a paper check and a possible deportation, what we will find is that many law-abiding Hispanics will be caught in the net. Even if the vast majority of illegals are Hispanics, the majority of Hispanics are here legally.

Now, we can argue from here that the disproportionate impact on law-abiding Hispanics as opposed to law-abiding Anglos and African-Americans is a price worth paying to crack down on illegal immigration. That would be another argument. However, the implicit argument in this kind of statement, that the charge of racial profiling is invariably trivial, doesn't work.