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Mises Seminar, 29-30 November 2013, Brisbane, Australia Dr Ben O’Neill, University of New South Wales Discrimination and Equality before the Law
Demographic Profiling • 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.
Demographic Profiling • Detection of lawbreaking: In this case there can be rational discriminationbased 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.
Demographic Profiling Who is carrying weed?
Demographic Profiling Who is carrying a Spiderman comic book?
Demographic Profiling Who is carrying a fountain pen?
Demographic Profiling • 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.
Demographic Profiling He is more likely to be carrying weed...
Demographic Profiling ...but if she has weed, it is the same act.
The Pattern • 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 Pattern • The position of government agents: • Agents of the authority are incentivised to use this power to obtain arrests and convictions; • These agents rationally target groupsmost 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.
The Pattern • 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 Pattern • 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.
Blaming discrimination • 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.
Blaming discrimination • 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.
Blaming discrimination • 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.
The Pattern • 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.
The Pattern • 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.
The Pattern • 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.
The Pattern • 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!
The Pattern • 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.
The Pattern • Introduce new broad powers: New York has had wide police powers to ‘stop and frisk’. Use of the powers increased over 2003-2013. 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.
The Pattern • 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.
The Pattern • 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.
The Pattern • 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.
The Libertarian Solution • 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.
The Libertarian Solution • 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.
The Libertarian Solution • 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.
The Libertarian Solution • 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.
The Libertarian Solution • 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.