Chapter 13: Criminal Profiling: The Good, the Bad and the Ugly
Abstract
This discussion entails both empirical data and the work experience of a thirty-eight year law enforcement veteran. The section compares criminal profiling with actual practice. The author contends that the birth place of criminal profiling is found in Terry v. Ohio. This section suggests that criminal profiling is a day to day practice of street officers and the much romanticized psychological criminal profiling, which is relatively new, is a by-product portrayed in the media. Policing tactics and methodologies dealing with criminal behaviors, unlike racial profiling, is generally recognized as an acceptable process. Whereas racial profiling, is immoral, unethical, and illegal. The public often has a problem differentiating between the two, specifically in light of highly publicized episodes of police use of deadly force. The reader will synthesize the impacts of the 9/11 Terrorist attacks on America and profiling. Readers are encouraged to create a creative works that provides avenues that overcome the two issues.
Criminal Profiling Defined
Criminal profiling is synonymous with offender profiling both of which are useful investigative tools used in policing (Woodhams and Toye, 2007). Profiling’s purpose is to identify likely suspects that are correlated with criminal characteristics and patterns. Berg (200) maintains that a Psychological profiler relies heavily upon perpetrators methods of operation or evidence left at a crime scene to identify a person’s personality or state of mind. The process is not new and dates back to the Jack the Ripper murder campaign in 1888 and has evolved to applications including but not limited to predictive profiling, sexual assault offender profiling, and behaviors recognizable and related to criminal conduct (Canter, 2004).
Racial Profiling Defined
Racial profiling is stereotyping. In short, racial profiling is the act of suspecting criminal activity based solely on the color of person’s skin or their minority status or their ethnic origin (Warren, & Farrell, 2009).
According to the American Civil Liberties Union (ACLU):
‘Racial profiling’ refers to the practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin. Criminal profiling, generally, as practiced by police, is the reliance on a group of characteristics they believe to be associated with crime. Examples of racial profiling are the use of race to determine which drivers to stop for minor traffic violations (commonly referred to as ‘driving while black or brown’), or the use of race to determine which pedestrians to search for illegal contraband.
Terry v. Ohio, 392 U.S. 1 (1968)
Terry v. Ohio is the Supreme Court Case that provides for police officers to use their training, experience, knowledge, skill, and observation to intercede on behalf of the public into criminal conduct. None the less it is a court sanctioned form of profiling, specifically criminal profiling that as contended early on in this discussion is the basis of other forms of profiling, both positive and negative. In brief an experienced Cleveland police officer (detective) observed conduct of three men that rose to the level of casing a store in preparation to commit a robbery. The police officer acting on reasonable suspicion removed the trio from an automobile and patted them down. The pat down revealed what appeared to be weapons on two of the culprits and resulted in a search that confirmed the officer’s suspicions. The court held that in these circumstances an over the clothes pat down to provide safety for the officer is sufficient and does not rise to the level of a seizure but rather a stop and frisk is not a search (White, 2007).
The preceding is an example of descriptive common sense police work that orchestrated profiling at differing levels. In recent years Racial Profiling is on highways and streets solely based on race which is a form of police misconduct. However an officer acting on observed conduct that raises the suspicions of the police that criminal activity may be afoot is criminal profiling and occurs hundreds if not thousands a time daily across this country. If not for profiling what would constitute a reason for a stop? How much police work would be done? It is in this manner that criminal thinking is apparent in behaviorism or mannerisms that create suspicions. Further criminal thinking is important in all fashions of profiling however the type and manner of Terry Stops is critical to day to day operations.
Since Terry, the court rendered rulings regarding stops based on race, ethnic origin or minority status. In 1975, U.S. v. Brignoni-Ponce was decided. The facts of the case relate that Felix Humberto Brignoni-Ponce was traveling in his vehicle and was stopped by border patrol agents because he appeared to be Mexican (Oyez.org, 1974). The questioning by agents and other passengers revealed an illegal status of the occupants. The court ruled that the information gleaned from the interviews was inadmissible due to lack of probable cause by agents in the initial stop. The actions of the agents was a violation of the Fourth Amendment.
However in subsequent matters the court ruled to the contrary. The U.S. Supreme Court determined in 1993 that disparity in conviction rates is not necessarily unconstitutional unless data demonstrates that defendants of another race similarly situated are disparately impacted (U.S. v. Armstrong, 1993). In another case, Whren v United States (1996), police stopped a truck for failing to use a turn signal and upon approach of the vehicle police observed Whren in possession of crack cocaine. The court sustained the prosecution finding that police did not violate the Fourth Amendment, regardless of the pretext of the officers. An observable traffic infraction provided license and privilege for police to act.
Having stated the purpose of this article it is essential to provide a description of criminal profiling as detailed in current research and then the brief discussion of Terry Stops criminal profiling. According to Hatch-Maillette, Scalora, Huss & Baumgartner (2001):
Individuals who demonstrate heavy involvement with the legal system are an undeniably important population to consider in terms of economic, social, and ethical issues. To the extent that knowledge of these people can be amassed, researchers and clinicians can begin to address the financial and societal burdens experienced by those who are indirectly or directly affected by our criminal justice system. One way in which our understanding can increase is by systematically examining the thought content of criminal offenders in hopes of detecting patterns in specific categories of cognitions that are indigenous to the type of crime committed (p.115).
Types of Profiling
Criminal profiling according to Muller (2000) “is the process of using available information about a crime and crime scene to compose a psychological portrait of the unknown perpetrator of the crime (as cited in Bartol & Bartol, p.56). Criminal profiling in this fashion is instrumental providing investigators with a psychological evaluation of relevant information of offender and his/her possessions and the technique for interviews (Bartol & Bartol, 2008). Additionally, the information from a crime scene of an unsolved homicide may offer legitimate information for the investigator; however not all offenses are appropriate for criminal profiling. Crime Scene Analysis (CSA) probably the most romanticized by the media is the most popular (Bartol & Bartol, 2008).
As asserted by Ressler, Burgess & Douglas (1988) CSA “Criminal profiling is a six-stage process” (p.58). The stages: Profiling Inputs and concerns, collection of all information; Decision Process Model in which the information is analyzed; Crime Assessment or in this stage is the term, getting into the mind of the criminal; Constructing the Profile is performed in this stage consisting of age, characteristics of the offender, race general appearance of offender, relationship to victim and any other notable features; Investigation whereby the profiler submits a report to the agency; and finally Apprehension assuming the correct offender is caught (Ressler et al., as cited in Bartol & Bartol, p.58-59).
Is criminal profiling of use to the police profession or perhaps in diagnosis of perpetrators for rehabilitation purpose, the evidence provided is scant however it does indicate promise (Bartol & Bartol, 2008). CSA is more reliant upon experience and intuition. Criminal profiling will be tested longitudinally as evaluation of offenders prove positive and providing testing is best available with the IP as more empirical studies can make its claim (Bartol & Bartol, 2008). Criminal profiling as described thus far has been primarily reserved for serial killers.
Maillette et al. (2001) insist that “one instrument developed to measure specific aspects of criminal thinking regardless of offender type, is the Psychological Inventory of Criminal Thinking Styles (PICTS)”(p.105). The PICTS assesses eight thinking styles including: Mollification-rationalization; Cutoff-rapid elimination of deterrents to crime; Entitlement-ownership or misidentification of wants and needs; Power Orientation-aggressive behavior; Sentimentality-compensating for previous conduct; Super optimism-ego to maintain criminal life style; Cognitive Indolence-lazy thinking; and Discontinuity-little premeditation (Maillette et al., 2001).
The PICTS instrument is a better fit than is the CSA as the former removes more of the assumptions and speculation from offender behaviors. Again as previously stated CSA is made for television and big screen as compared to the latter that is descriptive and is more open to other criminal conducts unlike CSA which is restrictive to serial killers (Bartol & Bartol, 2008). Thus is descriptive of other types of profiling and providing a segway to the next portion of this discussion.
The longevity of CSA or IP is essential in long term investigations; however currently are without empirical studies of any magnitude; yet PICTS provides evidence that certain characteristics may be tested. It is incumbent upon police leadership to provide training and education and ethics guiding the conduct of officers so that profiling is of the legitimate form (White, 2007).
Getting into the minds of the criminal has its place, especially in treatment of offenders but not in the fast pace of policing from the street level. Again, it has come a long way; demonstrating merit nonetheless has not passed the empirical research test to date (Bartol & Bartol, 2008). On the other hand Terry type profiling has been in place for over forty years and remains solidly situated based on court fashioned reasoning.
There are two other forms of profiling offered which will receive no other attention than honorable mention in this discussion. These are Investigative Psychology (IP) and Diagnostic Evaluation (DE) and as pointed out by Bartol & Bartol (2008) “CSA does have the potential to be scientific with some work, but the main problem seems to be that it does not want to be scientific. Unlike, CSA, IP was designed from the beginning with science in mind…IP has a great deal of potential to become a science, but it still has a long way to go before it will be recognized as a discipline in itself” (p.62).
Private Sector
Private sector security is not to be minimized. Do not envision the security guard at a gated community, although their radio equipment and surveillance equipment is state of the art, more so than most CJ practitioners. Rather corporate security must be provided respect in the hierarchical plateau. The private security component is responsible for multi-continent computer security; guarding high tech industrial secrets; background investigations that public servant background investigations pale by comparison; satellite positioning; and bank transactions that if breached would cost this Country billions of dollars. The private sector is far more advanced, they have the means to provide their workforce with the most modern up to the minute equipment and they do not deal with the same impediments as the criminal justice practitioner. In most cases they do not work within the confines of the U.S. Constitution. Their use of obtained information is generally not subject to public scrutiny and is an actual form of criminal profiling. This is probably just one more reason why the public sector should embrace the private sector security corporations if not for their hand me downs, then for their expertise and contemporary methodologies.
Further the contention of this section is that profiling is used in the private security sector with impunity. For example in casinos when a private person swipes his her credit card the facility has information that a public agency do not have ready access (police background investigation requires waivers to obtain information), such as credit report, where you have lived for previous ten years, whether you own your home or rent, criminal check and if anyone in your family is in the gaming business. Therefore the legal and bureaucratic arena that the criminal justice system creates an uneven playing field and may limit the technological advances available to the private sector. To coin a phrase, “We’re so far behind we think we’re first.” First of all the private sector is generally financially better prepared to meet its needs; second the private sector does not have to deal with huge bureaucracies to gain a purchase; third they are not as concerned with individual liberties as the public sector employee; and finally, the private sector planning and development is not encumbered with politics.
9/11 Attacks
In The 9/11 Commission Report, the commission concluded that one of the failures of public safety was the failure of public safety officials’ “imagination.” Moving forward, how should public safety officials address public safety threats using unconventional or nontraditional methods? After reviewing chapters 11 and 12 in The 9/11 Commission Report and the follow-up report about successes and challenges, readers should postulate a personal discussion as how success in the war on terror can be measured quantitatively. Consider the role of individual rights in conducting and measuring the war on terror.
In researching the posed questions, on the surface they appear nearly inseparable. As such, the reader may find them often intersecting. Although issues that intersect may cause convoluted issues, this may provide a wholesome approach, challenging personal innovative juices toward solutions. Differing issues often reside in the grey area, clarity of issue may be elusive, as may seem resolution. Thus imagination, creativity, and innovation are critical to solving issues. Repetition may slow down the process but at the same time provides avenues to rethink ourselves and perhaps even provide a different image to the world. An image this author suggests must contain the truth. The truth of challenges that lay ahead, truth in ethical behaviors, truth of remedies, truth of longevity of a remedy, and truth of failure. Political correctness has a place in society but not to the point it distorts truth, facts, and circumstance.
Although the majority of America’s efforts to thwart terrorism have been abroad, the U.S. must not lose sight of those that are amongst us. Having said that, the onetime bureaucratic systematic, silo of information and jurisdictional feuds and total lack of imagination on the part of leaders in critical positions have slowly eroded. The erosion has given way to new forms of thinking. As an example during the Y2K crisis the walls fell between agencies and the cooperation was second to none. The crisis was based on the theory that information networks that controlled power grids, information networks, banking institutions and governmental institutions would collapse. The information networks would be unable to transcend the cross over from years 1999 to 2000. A great deal of human manipulation and interagency cooperation transpired to make a smooth transition.
Once the crisis had passed, without the world collapse due to information networks inability to make the change from one century to the other and terrorist attacks on infrastructure did not occur, this nation went back to business as usual. In short America can no longer remain complacent to global concerns. America cannot rest on its laurels and be a nation of reaction, the new world order requires a proactive nation to take away the threat prior to the threat gaining momentum and support.
As illustrated in Chapter 11 of The 9/11 Commission Report, Al Qaeda used trucks, cars, boats and trains as suicide vessels, why would they not use airplanes? Specifically, when Al Qaeda could speculate with reasonable certainty based on American Ideology that if they were found out before they could carry out the suicide by airplane attack; we as a country would be hard pressed to shoot a plane load of civilians from the sky.
The following is a list of ten suggested steps that may be taken to impede the terrorist abroad and amongst us. First, a need to continue with the Community Policing aspect of law enforcement in this country and gain more involvement of citizens. Citizen vigilance is critical to the safety of our nation both on the domestic and international front. Second, a need to hold politicians and bureaucrats feet to the flame to ensure continuity of viable recommendations and they are provided resources to fruition. Third, America can no longer be seen as merely taking the high road in all situations. This country requires a reputation and respect retaliation in kind, tenfold when attacked. This includes having the intestinal fortitude to kill terrorist by whatever means necessary and not from behind the curtain but out in the open. Terrorist are not psychopaths, they are criminals. Criminal during a time of war and should be dealt with as any war criminal and America needs get over some its ideological policy dealing with terrorist in the American Justice System rather than as war criminals.
Fourth, America should remain with international alliances that have created strength through unity and build on greater relationships. These alliances should be empowered to act against terrorist, based on legitimate profiles of terrorist. These allies should be required to seize all assets from terrorists and put the assets into the coffers to help pay for the fight against terrorism. Fifth, bureaucrats or allies that withhold critical information from another entity in the fight against terror should be held responsible, civilly and criminally. Certainly standards are required to determine when bureaucrats or outside entities knew or should have known of the information and of its importance. Subordinates that had same information should be held to the same standard. Legislation in this context is not groundbreaking, similar but not the same are Domestic Violence Legislation in New York State made it a misdemeanor for police officers to ask a victim if they wanted the aggressor arrested in a domestic incident. They are under legislative mandate to mandatory arrest policy and only a judge will determine thereafter.
Sixth, continue through diplomatic channels to create the unholy alliances that at one time were thought of as distasteful to this nation. I believe the guide in this instance needs to be the old adage, “keep your friends close, but your enemies closer.” Seventh, foreign states providing safe havens for terrorist should suffer sanctions and time frames to adequately address the issue. Should this fail then force may be an alternative. If the sovereign nation giving aid to terrorist happens to be an oil producing state then perhaps an asset forfeiture program for taking control of their oil fields are in order. Eighth, continue to develop a form of democracy where possible without fear of retribution from terrorist. The elections in recent time in the mid-east have proven invaluable. Ninth, as America builds schools for war torn countries, a multi-national military presence may be necessary to prevent propaganda seeping into the school system. Tenth, use what means deemed acceptable by the professionals in government and American allies to secure weapons of Mass Destruction and eliminate by what means possible those who propagate the use of these weapons against the United States and U. S. allies.
The suggested list would seem aggressive and in part a hard liner approach. In short, it will be much better for a foreign nation to be America’s friend rather than a suspected foe. If bureaucrats or their organizations feel an action is in the interest of national security and passes muster through a layer of review (review team consisting of national and international membership) without unnecessary delay (prevent terrorist from slipping away) it should be implemented without fear of character assassination and propaganda retribution. America must realize that this is not our playing field; it is now a transnational field whereby the only rules are is that there are no rules. Domestic terrorist if acting under a transnational influence should be dealt with in the same fashion. Domestic terrorist that fall within our judicial system due to the type of crime and limited access to the transnational arena remains criminal actions over terrorist warriors.
War on Terror
The 9/11 Commission Report, (p.364) indicates that quantitative measurements are unnecessary for review of progress made or measuring success against the struggle against terrorism. The author submits that qualitative measurement through benchmarks, using a vaguer goal attainment is practical and more plausible due to the type of offense attempting to measure. The report is replete with the statement that, “America is safer, but not safe,” should be an indicator of the inability to measure success to the inch degree. The fact is that this country will never eliminate all acts of terrorism, domestic or abroad, as indicated in this report. Substantial progress has been made to date but more is obviously required. The greatest enemy faced in this nation is that of “complacency.” This nation must recognize the need for vigilance and personal involvement the U.S. cannot achieve our goals of being safer (both criminal and terrorist activity).
When discussing civil rights and abuses this nation need to take a step back and examine the constitution. America’s forefathers, in their creation of the grand and glorious document that was penned into flaming gold, never promised citizens that the document would make things easier, but rather directly or indirectly through its construct ensures it’s citizens they have access to the debate. The debate can be of government, legislation, human rights, civil rights, etc. Individuals must take stock in what is important to them as individuals, what is important as a free nation and finally make a determination or come to the realization that free is not necessarily free. During the research for this discussion and through practical experience, terrorist investigations mirror many of the daily criminal investigation. The overly abused term of racial profiling can only be applied where it is clear that race is the sole determination for the police intervention. Undeniably there have been abuses, and there have been severe response by local, state and federal governments when determined to be legitimate. The distinction between race and criminal activity is required and should be promoted for greater understanding by the community being policed.
Criminal profiling is found in the landmark decision of Terry v Ohio that has been the basis for police stop and frisk for years, not to mention incorporated in most police training. The Supreme Court recognized early on there are real and significant indicators of criminal activity or criminal activity afoot. The Courts further found a need for public and officer protections that required limited police intrusions in order to determine what is going on and safety simultaneously. The Terry decision came to being during the Warren Courts of the sixties, the reality of its interpretation is that it dealt with criminal behavior easily recognizable by a trained, experience and articulate police detective. What is important in this discussion is to admit that race has played a role in the decision making of some police officers. History will demonstrate that in fact race had determined policy for some police agencies. For the most part either an individual officer or an agency inappropriately dealing with citizen’s base on race they have been dealt with in some fashion. The penalty may be in form of fines or some form of federal or state monitoring or both. Not all rights violations by police have been based on race. As is the case of NY v Ingle and Delaware v Prouse, both dealing with car stops and neither based on race but rather Fourth Amendment violations lacking probable cause in search and seizure. Ingle was a white male, long haired, micro minivan driving individual that during the time period equated to drugs. In the Prouse case a pedestrian stop by an astute police officer that generally knew who belonged in his patrol area stopped Prouse because the suspect just did not fit in. Each case went down on separate issues but both had one common denominator, police must act based on reasonable suspicion/probable cause, not because they simply fit a self-determined profile; as remains the criteria today.
The U.S. Constitution should be viewed as business document and not simply a collection of individual rights. A business document detailing what government can do and cannot due. A contract between a government under the rule of law and its citizenry. The business of government is open to public review and criticism without retribution from the government as well as input through those elected. An agreement as to how government is created and conducted (open for debate but a salient point of governmental review). Therefore, as the business of this nation changes, government should change accordingly and one would reasonably expect at the same rate of change. Perhaps this may be a flash point for discontent. However, each individual living under the cloak of freedom provided by the U.S. Constitution must take stock in personal responsibility, personal behaviors, personal accountability, and personal involvement, particularly during periods of ethical uncertainties. Citizens of America should expect government to get out of its way without sacrificing individual rights, recognizing the overarching rights of society when dealing with terrorism. Terrorism is a relatively new business for America to recognize (albeit terrorism has been around for centuries but not here), fully understanding that terrorist may want to kill Americans for no other reason than being an American. This is in uniform or civilian attire anywhere in the world and at any time.
New rules require new thinking and perhaps those as submitted in this or previous discussion, terrorism will require a new set of rules.
References
Bartol, C. R., & and Bartol, A. M. (2008). Current perspectives in forensic psychology and criminal behavior (2nd Ed.). Los Angelos, CA: Sage Publications, Inc.
Berg, B. L. (2008). Criminal investigation. Boston: McGraw-Hill Higher Education. ISBN 9780073401249.
Canter, D. (January 2004). Offender Profiling and Investigative Psychology. Journal of Investigative Psychology & Offender Profiling. 1: 1–15. doi:10.1002/jip.007. Retrieved November 19, 2015.
Cornell Law School. Law.cornell.edu. Retrieved 2013-08-13.
Hatch-Maillette, M. A., Scalora, M. J., Huss, M. T., & & Baumgartner, J. V. (2001). Criminal thinking patterns: Are child molesters unique? International Journal of Offender Therapy and Comparative Criminology, 45(1), 102-117.
Racial Profiling: Definition. American Civil Liberties Union. Retrieved 2015-11-04.
Ressler, R. K., Burgess, A. W., & & Douglas, J. E. (1988). Sexual homicide: Patterns and motives. Lexington, MA: Lexington Books.
United States v. Armstrong, 517 U.S. 456 (1996). Justia Law. Retrieved 2018-03-06.
United States v. Brignoni -Ponce.” Oyez, https://www.oyez.org/cases/1974/74-114. Accessed 5 March 2017.
Warren, P. Y. & Farrell, A. (2009). The environmental context of racial profiling. The Annals of the American Academy of Political and Social Science. 623: 52–63.
White, M. D. (May 30, 2007). Current issues and controversies in policing. Boston, MA: Pearson: Allyn and Bacon.
Woodhams, J., & Toye, K. (February, 2007). An empirical test of the assumptions of case linkage and offender profiling with serial commercial robberies. Psychology, Public Policy, and Law. 13 (1): 59–85. doi:10.1037/1076-8971.13.1.59.
Whren v. United States.” Oyez, https://www.oyez.org/cases/1995/95-5841. Accessed 5 March 2017.