Chapter 6: Criminal v. Racial Profiling and Surveillance

Chapter Abstract

This discussion will entail both empirical data and the work experience of a thirty-eight year law enforcement veteran comparing criminal profiling with actual practice in comparison of this authors insinuation that the birth place of criminal profiling is found in Terry v. Ohio. It is the contention of this document that criminal profiling is a day to day practice of street officers and the much romanticized criminal profiling as viewed by the media is a by-product of good street cop methodology, unlike racial profiling. Readers are asked to draw a comparison between criminal profiling, racial profiling, and Homeland Security. The reader may find similarities between Chapters Six and Thirteen, although they reiterate material discussed they provide for differing contextual thinking relative to both topics discussed.

Homeland Security

There cannot be Homeland Security without first Hometown Security. This discussion is premised on a number of criteria that is essential to ethical foundations in the CJ system. First, private security does not have to play by the same rules as government employees. Freedom of privacy, albeit not specific in the U.S. Constitution is defined by court rulings relative to existing language. It is further the contention of this section 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 does not have ready access, 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 (police background investigation requires waivers to obtain information). Therefore the bureaucratic arena that the criminal justice system resides is drastically restricted by legal obligations and the private sector has far outpaced their governmental counterparts in the technological advances arena. 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; they are not concerned with individual liberties as the public sector employee; and finally, the private sector planning and development is not encumbered with politics.

When I speak of the private sector, I do not wish for you to 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 practitioner. Rather I offer my comments toward the corporate security responsible for multi-continent computer security, responsible for guarding high tech industrial secrets, background investigations that make public servant checks 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. Further 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.

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).

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, 2008, 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). There are two other forms of profiling offered which will receive no other attention than honorable mention in this discussion 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).

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. Strong ethical foundational requirements of the custodians of the information is not limited to this domain.

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.

Terry v. Ohio, 392 U.S. 1 (1968) 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 rob. 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 a frisk that is not a search (White, 2007).

The preceding is descriptive of common sense police work that orchestrated profiling at differing levels. In recent years racial profiling that is perpetrated on highways and streets based solely on race is a form of police misconduct. Clearly stated racial profiling is ethically, morally, and legally wrong. However, an officer acting on observed conduct that raises the suspicions of the police that criminality is afoot is criminal profiling and occurs hundreds if not thousands a times 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.

Criminal thinking is important in all fashions of profiling however the type and manner of Terry Stops is critical to day to day operations preventing crime. As an example of ethical conduct enjoined in policing; you the police officer finds a women that is scantily dressed, standing on a corner in an area of high incidences of prostitution, waiving at passing motorist. Your observations include at least two vehicles stop, the women puts her head inside the passenger window, but they move on. Finally a third vehicle stops and the women gets in. You follow from you unmarked police car at a distance until the suspect vehicle secludes itself behind an area strip mall. You approach the vehicle in the dark secluded area on foot, and find two males passionately involved. You shout bias comments at them and send them on their way, angrily thinking how much of your time they had wasted. Guess you showed them with your comments or did you? What ethical dilemma may arise in this scenario? How should you have handled this? What outcomes may result because of unethical inactions?

The longevity of CSA or IP is essential in long term investigations. Unfortunately these methods are currently without sufficient 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 constitutes 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.

Privacy and being free from government overreach was a key component by the architects of the American Constitution. What is privacy and where does it apply? As previously noted, citizens have given up information when signing for a credit card and privacy of the information by citizens of the information obtained by private corporations is not totally restricted. In other words most have given up their right to the information when they sign for the card. The same applies to telephone contracts and other media devices often used in our high-tech society.

What about public spaces as it relates to privacy? There is a limited expectation of privacy in public spaces. This hold true for airwaves in social media and the courts have ruled regarding secondary data (telephone numbers) maintained by private companies. This has not been without controversy.

Evaluating the Use of Public Surveillance Cameras for Crime Control and Prevention (Taken directly from Urban Institute Report)

Purpose

The Urban Institute studied the surveillance systems in three cities, Baltimore, Maryland; Chicago, Illinois; and Washington, D.C. In response to this knowledge gap, The Urban Institute (UI) undertook a rigorous process and impact evaluation of the implementation and use of public surveillance cameras for crime control purposes; The results of the evaluation, funded by U.S. Department of Justice’s Office of Community Oriented Policing Services (the COPS Office), illustrate the variety of ways in which cameras can be implemented and used by jurisdictions and suggest that these differences affect the degree to which cameras reduce crime (UI, 2011).

Working With an Outside Evaluator

In-house evaluation provide by the COPS Office and the Urban Institute and this study relied heavily on literature review of European and U.S. cities.

Developing an Evaluation Plan

The evaluation process of this study involved the synthesis of qualitative data obtained from interviews with 44 stakeholders representing the planners and public officials involved in each city’s decisions to acquire and employ this technology, as well as the law enforcement officers, civilians, and other local criminal justice practitioners engaged in camera use. This was supplemented with interviews, document review relating to implementation and monitoring use. The UI team observed monitoring practices and use of the cameras by patrol, detective and supervisory personnel of the police department (UI, 2011).

Findings on the implementation and use of public surveillance systems varied from each municipality as the City of Baltimore saturated the test area and provided 24 hour monitoring of the live video stream. Chicago employed an extensive wireless network of cameras and enabled access to all sworn officers; while Washington implemented the fewest cameras in specific high-crime areas, restricting the monitoring due to privacy safeguards (UI, 2011).

Identifying Goals and Objectives

The process evaluation component of the present study is based upon qualitative data and is organized around the following research questions: Why do cities choose to invest in public surveillance technology for public surveillance purposes? What do they hope to gain from their investment? What factors play a role in decisions about the types of cameras that are purchased and how they are deployed and monitored? How is the public involved in decisions to invest in and use public surveillance cameras? How are cameras used to support real-time arrests, and how are they used for investigative purposes? What are the advantages and limitations to using public surveillance cameras for prosecution purposes?

Thus, the process measures collected during the course of this evaluation were guided by the types of information that would be most helpful to those cities that are considering investing in public surveillance technology, as well as those that are looking to improve or expand current public surveillance use (UI, 2011, p.9).

Evaluation Experiments

Prior evaluations have contributed greatly to the knowledge of how best to measure public surveillance technology’s impact on both crime and possible displacement or diffusion effects. The impact evaluation relies on quantitative data on reported crimes, demographics, land use, camera installation locations and types, and cost data. UI researchers used these data to conduct both general and crime-specific time series and difference-in-differences analyses to examine the impact of public surveillance technology on crime.

Researchers also employed detailed location-specific diffusion and displacement analyses to determine the degree to which crime was reduced, diffused, or shifted to nearby areas. Stemming from findings from the impact analysis, a cost-benefit analysis of camera use was conducted in two study sites, Baltimore and Chicago. The cost-benefit analysis explored whether the costs associated with public surveillance technology are proportionate to any reductions in crime and increased efficiencies in investigations that may be attributed to the intervention (UI, 2010).

Data Collection

The methodology employed in this evaluation combines the collection of both qualitative and quantitative data. The qualitative component is embodied in a process evaluation designed to document the installation and use of the public surveillance systems in three U.S. cities: Baltimore, MD; Chicago, IL; and Washington, D.C. Interviews with jurisdictional and law enforcement leaders, sworn officers, detectives, prosecutors, and civilian camera monitors, along with the review of policies, budgets, and other documents, form the backbone of the process evaluation.

As indicated above the evaluation process of this study involved the blending of qualitative data obtained from interviews with 44 stakeholders representing the planners and public officials involved in each city’s decisions to acquire and employ this technology, as well as the law enforcement officers, civilians, and other local criminal justice practitioners engaged in camera use. This was supplemented with interviews, document review relating to implementation and monitoring use. The UI team observed monitoring practices and use of the cameras by patrol, detective and supervisory personnel of the police department (UI, 2011).

Summary of Project

The Baltimore study realized a reduction of crime of over 35% and the stakeholders considered the cameras an effective tool. Chicago study indicated a 20% reduction in crime and the average monthly crime counts relating to drug and robbery crimes in the highly publicized area decreased by approximately 33% and violent crimes in the camera area decreased by 20%. In both locales they had study areas that showed no decrease as well. However the drop in the crime rates outweigh the camera cost as illustrated in the Chicago study the city saved $815,000 dollars a month in criminal justice and victim costs.

Washington, D.C. camera program was instituted in 2002 primarily for monitoring events. Due to the public outcry regarding citizen privacy the system is not monitored as the other two studies and the officers in D.C. feel it is hit or miss. The value of the comparison demonstrates the camera is smart technology and smart policing but the cameras alone are insufficient to reduce crime (mere presence). The systems must be monitored 24/7 and information gleaned from the surveillance systems must be provided to patrol officers or as in the Chicago study each patrol sector monitors camera information from their patrol vehicle.

Patriot Act

The USA Patriot Act expanded the definition of terrorist organization as: “any group two or more individuals, whether organized or not, that commit or initiate to commit terrorist activity, plans a terrorist activity, or gathers information for potential targets of terrorist activity” (Aziz, 2003). This definition imposes an ideological test for examination of any representative of a political/social group who publically supports or endorses terrorist activity. By this definition the standard only requires that the individual knew or should have known, but not actual knowledge of terrorist activity. Welcome to federal law. The above is not inconsistent to definitions of Title 18 of the United States Code, 18 U.S.C. § 1961–1968, The Racketeer Influenced and Corrupt Organizations Act (RICO) originally designed to cover activity of the Mafia in domestic criminal law (Goldsmith, 1988). Critics will argue the USA Patriot Act is https://www.justice.gov/archive/ll/what_is_the_patriot_act.pdf (Link to Patriot Act) applied through double standards for Israeli organizations and individuals involved in known terrorist activity in contrast to those with affiliation with Iraqi relief foundations (Aziz, 2003).

The Foreign Intelligence Surveillance Court was established in 1978 when Congress enacted the Foreign Intelligence Surveillance Act (FISA), which is codified, as amended, at 50 U.S.C. §§ 1801-1885c. The Court sits in Washington D.C., and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis (U.S. Courts. gov.). The following link is provided for rules and procedures of the court. http://www.fisc.uscourts.gov/sites/default/files/FISC%20Rules%20of%20Procedure.pdf

According to Goldsmith (1988), The U.S. Supreme Court has instructed federal courts to follow the continuity-plus-relationship test in order (RICO Act Standard) to determine whether the facts of a specific case give rise to an established pattern. Predicate acts are related if they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events” (p. 971).

The FBI is authorized under the Patriot Act to request, and now authorizes the court to issue search warrants for citizens believed to be involved in terrorist activity. The court is the Federal Intelligence Surveillance Court. Activities may include act such as non-violent protest against the government as covered under the First Amendment (Constitutional Foundation, n.d.).

Ethics will ultimately determine discretion, greater good in balance with being morally correct will determine accuracy; however each case will be determined by its own set of circumstances and no one definition of ethics will fit every circumstance and perhaps they may co-exist. The main question posed for citizens is whether this is too much authority by the government or is the question, if a citizen is not doing anything wrong they have nothing to worry about. Is ethics left for the eye of the beholder or is ethical conduct left for those that shall pass judgment in hind sight? This may always be the prevailing and lingering question when dealing with ethics?

References

Aziz, S. (2003). The laws on providing material support to terrorist organizations: The erosion of constitutional rights or a legitimate tool for preventing terrorism? Texas Journal on Civil Liberties & Civil Rights, 9(1), 45-92. Retrieved from

Bartol, C. R., & and Bartol, A. M. (2008). Current perspectives in forensic psychology and criminal behavior (2nd Ed.). Los Angeles, CA: Sage Publications, Inc.

Constitutional Rights Foundation (n.d.). Patriot Act: What Is the Proper Balance Between National Security and Individual Rights? http://www.crf-usa.org/america-responds-to-terrorism/the-patriot-act.html

Goldsmith, M. (1988). Rico and pattern: The search for continuity plus relationship. Cornell Law Review, 73 (5). : http://scholarship.law.cornell.edu/clr

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.

Ressler, R. K., Burgess, A. W., & & Douglas, J. E. (1988). Sexual homicide: Patterns and motives. Lexington, MA: Lexington Books.

Urban Institute, Justice Policy Center and U.S. Department of Justice, Community Oriented Policing Service (2011). Evaluating the use of public surveillance cameras for crime control and prevention. http://www.urban.org/url.cfm?ID=412403

U.S. Courts. Foreign Intelligence Surveillance Courts. Rules of Procedure. http://www.fisc.uscourts.gov/rules-procedure

U.S. Department of Justice, BJA Center for Program Evaluation and Performance Measurement

Justice Research and Statistics Association http://www.ojp.usdoj.gov/BJA/evaluation/

The USA Patriot Act: Preserving Life and Liberty. U.S. Department of Justice. Federal U.S.C. Title 18 of the United States Code, 18 U.S.C. § 1961–1968 (1968). https://www.justice.gov/archive/ll/highlights.htm

White, M. D. (May 30, 2007). Current issues and controversies in policing. Boston, MA: Pearson: Allyn and Bacon.