Racial Profiling Part II

Q. What does Jewish tradition teach us about racial profiling?

A. As we explained last week, profiling -- racial or otherwise -- involves singling out people for suspicion based on characteristics that are statistically correlated with wrongdoing but don't have any inherent connection. We gave the example that most crimes are committed by young men, but being a young man doesn't "cause" a person to commit a crime.

There is a remarkable story in the Talmud which, it seems to me, bears very directly on the profiling question. The story is about Rebbe Elazar the son of Rebbe Shimon bar Yochai. Rebbe Shimon bar Yochai is widely recognized as one of the greatest rabbinical scholars and leaders in all of Jewish history, and the stature of his son Elazar is only slightly below. Yet the Talmud tells of an astonishing second career imposed on him in his later years:

Rebbe Elazar the son of Rebbe Shimon encountered a certain inspector whose job was to catch thieves. He asked him, how are you able to overcome them -- are they not likened to wily beasts? . . . Perhaps you are catching the innocent and leaving the wicked alone! He [the inspector] replied, what can I do? I have a mandate from the king. He [Rebbe Elazar] replied, come, let me teach you. Go into an inn in the late morning. If you see a person nodding off with a cup of wine in his hands, ask after him. If he is a Torah scholar, he is nodding off because he got up early to learn. If he is a workman, it's because he rose early to work. If he works at night, he was working late. Otherwise, he is [evidently] a thief, and arrest him.

The conversation was relayed to the king's household, and they said: Let the reader of the missive be charged with carrying it out. They brought Rebbe Elazar the son of Rebbe Shimon and from then on he became a catcher of thieves. Rebbe Yehoshua ben Karcha sent to him, "Vinegar the son of wine! How long will you continue to give over God's people to be killed [the penalty for stealing at that time]? He replied, I am merely weeding out the thistles from the vineyard. He retorted, the owner of the vineyard [that is, God] will come and weed the thistles himself.

Belying Rebbe Elazar's facile reply, the continuation of the passage reveals that he actually harbored serious misgivings about his job, and subjected himself to agony and afflictions because of his worry that he might be implicating innocent people -- despite supernatural reassurances that his remarkable instincts were in fact a reliable guide to singling out the guilty.

Legal authorities commenting on this passage point out that such extraordinary reliance on circumstantial evidence is not ordinarily justified, nor is capital punishment for thievery. Both are legitimated only in a situation of general lawlessness, a breakdown of law and order.

In attempting to apply this story to the current debate over profiling, we need to remember that profiling is used only to single people out for examination, not for actual conviction, internment etc. On the other hand, we should acknowledge that being singled out in this way can involve significant hardship, and is likely to lead to some cases of arrest.

The lessons of the story of Rebbe Elazar include the following:

1. Profiling can be justified only in the presence of extraordinary threats. It shouldn't be a routine part of law enforcement or security policy.

2. Even in an environment where profiling is fundamentally legitimate, it needs to be carried out with a constant awareness of the danger of unfairly singling out innocent people.

In practice, I would suggest that any policy involving profiling would have to specifically approved by a neutral authority. I think a good precedent would be wiretapping. In most democratic countries, law enforcement officials can't freely listen to private conversations. Not only is information gleaned from wiretaps inadmissible, but eavesdropping is forbidden even as a means to to put authorities on the trail to help them obtain admissible evidence. However, in extraordinary cases wiretaps can be requested by a senior law enforcement official and approved by a judge.

Likewise, I think that profiling should be allowed in specific cases, but never as a general policy. Each instance should require a specific request from a senior official and have to be approved by some kind of authority from outside the law enforcement hierarchy. (This could be a judge or alternatively a political official: mayor, governor, president.) Such a policy would enable profiling to be used in the presence of extraordinary threats, but help keep it from becoming a routine procedure which would deny many individuals of their of civil liberties and which could become a slippery slope towards a pattern of abuse.