Mises Seminar, November 2013, Brisbane, Australia Dr Ben O’Neill, University of New South Wales

 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.

 Detection of lawbreaking: In this case there can be rational discrimination based 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.

Who is carrying weed?

Who is carrying a Spiderman comic book?

Who is carrying a fountain pen?

 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.

He is more likely to be carrying weed...

...but if she has weed, it is the same act.

 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 position of government agents:  Agents of the authority are incentivised to use this power to obtain arrests and convictions;  These agents rationally target groups most 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.

 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 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.

Introduce new broad powers Incentives for govt. agents Targeting high-yield groups Complaint of unequal treatment Indiscriminate application Ineffective enforcement

 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.

 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.

 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.

 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.

 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.

 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.

 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!

 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.

 Introduce new broad powers: New York has had wide police powers to ‘stop and frisk’. Use of the powers increased over 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.