[Senate Hearing 107-537]
[From the U.S. Government Publishing Office]
S. Hrg. 107-537
S. 989: THE END RACIAL PROFILING ACT OF 2001
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HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
AUGUST 1, 2001
__________
Serial No. J-107-36
__________
Printed for the use of the Committee on the Judiciary
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80-475 WASHINGTON : 2002
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah,
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
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Subcommittee on the Constitution, Federalism, and Property Rights
RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
RICHARD J. DURBIN, Illinois JON KYL, Arizona
MITCH McCONNELL, Kentucky
Robert Schiff, Majority Chief Counsel
Garry Malphrus, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 9
Edwards, Hon. John, a U.S. Senator from the State of North
Carolina....................................................... 22
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 7
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 5
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 5
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 64
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 3
WITNESSES
Archer, Hon. Dennis W., Mayor, City of Detroit, Michigan, and
President, National League of Cities; accompanied by Hon. Olden
Henson, City Council Member, Hayward, California............... 24
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York....................................................... 16
Conyers, Hon. John, Jr., a Representative in Congress from the
State of Michigan.............................................. 11
Corzine, Hon. Jon S., a U.S. Senator from the State of New Jersey 14
Davis, Ronald L., Captain, Oakland Police Department, and Region
VI Vice President, National Organization of Black Law
Enforcement Executives, Oakland, California.................... 45
Fridell, Lorie, Research Director, Police Executive Research
Forum, Washington, D.C......................................... 49
Greenberg, Reuben M., Chief of Police, Charleston Police
Department, Charleston, South Carolina......................... 42
Harris, David A., Balk Professor of Law and Values, University of
Toledo College of Law, Toledo, Ohio............................ 58
Kelly, Raymond W., former Commissioner, United States Customs
Service, and former Commissioner, New York City Police
Department, New York, New York................................. 38
Shays, Hon. Christopher, a Representative in Congress from the
State of Connecticut........................................... 20
Young, Steve, National Vice President, Fraternal Order of Police,
Washington, D.C................................................ 30
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Washington, D.C., letter and
attachment..................................................... 77
Angela Davis Cop Watch and the Campaign Against Racial Profiling,
Milwaukee, Wisconsin, statement................................ 85
Asian Emancipation Project: Wisconsin Asian American Women's
Network, Madison, Wisconsin, statement and attachments......... 86
Butterfield, Fox, New York Times, July 30, 2001, article......... 89
Clegg, Roger, National Review, June 29, 2001, article............ 92
Cole, David and Lamberth, John, New York Times, May 13, 2001,
article........................................................ 93
Derbyshire, John, National Review, February 19, 2001, article.... 94
Hispanic American Police Command Officers Association,
Washington, D.C., statement.................................... 98
International Association of Chiefs of Police, Alexandria,
Virginia, statement............................................ 98
Kersten, Katherine, Weekly Standard, August 20-27, 2001, article. 100
Leadership Conference on Civil Rights, Washington, D.C., July 31,
2001, letter................................................... 103
Mexican American Legal Defense and Educational Fund, Washington,
D.C., July 31, 2001, letter.................................... 103
Montgomery, Lori, Washington Post, June 28, 2001, article........ 105
Morin, Richard and Cottman, Michael H., Washington Post, June 22,
2001, article.................................................. 108
National Association of Police Organizations, Inc., Washington,
D.C., statement................................................ 110
National Council of La Raza, Washington, D.C., statement......... 112
National Troopers Coalition, Albany, New York, letter............ 119
Sachs, Susan, New York Times, May 1, 2001, article............... 119
Seaton, Jimmy L., Director, Daleville Department of Public
Safety, Daleville, Alabama, letter............................. 122
Serrie, Jonathan, Fox News, July 27, 2001, article............... 123
Taylor, Stuart, Jr., National Journal, April 24, 1999, article... 124
Tucker, William, Weekly Standard, June 18, 2001, article......... 125
Victims of Crime and Leniency, Montgomery, Alabama, July 31,
2001, letter................................................... 129
Will, George F., Washington Post, April 19, 2001, article........ 130
S. 989: THE END RACIAL PROFILING ACT OF 2001
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WEDNESDAY, AUGUST 1, 2001
U.S. Senate,
Subcommittee on the Constitution,
Federalism, and Property Rights,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Russ
Feingold, Chairman of the Subcommittee, Presiding.
Present: Senators Feingold, Schumer, Durbin, Edwards,
Thurmond, Hatch, and Sessions.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Chairman Feingold. I call the Subcommittee to order. Good
morning, all of you, and welcome to the Constitution
Subcommittee's hearing on S. 989, the End Racial Profiling Act
of 2001.
This is the second hearing on the subject of racial
profiling that this Subcommittee has held in the past 2 years.
The first, in March 2000, was chaired by then-Senator and now
Attorney General John Ashcroft. Attorney General Ashcroft has
said that the hearing was instrumental in shaping his view that
racial profiling is not only wrong, it is also
unconstitutional.
President Bush has also spoken out against racial
profiling, first during the campaign and Presidential debates,
and then in his first address to the Congress back in February.
There, the President said, ``Earlier today, I asked John
Ashcroft, the Attorney General, to develop specific
recommendations to end racial profiling. It's wrong and we will
end it in America.''
Our first hearing on racial profiling focused on the pain
and humiliation that Americans who are victims of racial
profiling experience and the damage to the trust between law
enforcement and the community caused by this practice. We heard
the personal experiences of three citizens who had been victims
of racial profiling, and I think their stories are
representative of the experiences of thousands of law-abiding
Americans.
One of them that we all remember was Master Sergeant
Rossano Gerald, a decorated veteran of the Somalia conflict and
the Gulf War. Sergeant Gerald related a harrowing tale of
harassment by the Oklahoma State Police when he was driving
with his son, Gregory, to a family reunion. As part of his
testimony, Sergeant Gerald played a short videotape of his son
talking about the experience, and I would like to run that tape
now; it is just a couple of minutes long.
[Videotape shown.]
Chairman Feingold. That incident had a powerful impact on
all of us who witnessed it. Its effect on children of this
practice is obviously one of the things that concerns me the
most about racial profiling. Some children like Gregory
actually witness incidents of racial profiling and that can't
help but have a lasting and devastating effect on them.
But I have also heard from African-American parents that
they feel that they have to do something that would not even
cross the minds of most white parents, and that is to instruct
their children from a very early age about the prospect, and
even the likelihood, of being stopped by the police when they
haven't done anything wrong. That, to me, is a chilling fact.
Racial profiling leads to our children being taught from an
early age as a matter of self-protection that they will not be
fairly treated by law enforcement based not on the content of
their character, but instead will be seen as suspicious based
on the color of their skin.
A recent Gallup poll found that 44 percent of African-
Americans believe they have been stopped by the police because
of their race or ethnicity at some point during their lifetime.
A poll conducted by the Washington Post, Kaiser Family
Foundation and Harvard University made similar findings. That
poll found that more than half of African-American men and one
in five Latino and Asian men believe they have been the victims
of racially motivated police stops. Racial profiling is a shame
on our society that must be stopped. It is unjust, it is un-
American.
When Representative John Conyers and former Senator
Lautenberg and I introduced legislation to address this problem
last Congress, there were many Americans who were unaware of
the practice of racial profiling and others who believed it was
lawful or justified. So we introduced a bill that was largely a
vehicle to educate the public and our government agencies about
the problem. That bill simply called for the Justice Department
to carry out a nationwide study of traffic stops.
There is no question that some progress has been made over
the past few years. Because so many victims of racial profiling
like Sergeant Gerald and his son Gregory have had the courage
to step forward and talk about the anger and the frustration
and the indignity of being unfairly profiled, we have now moved
well beyond where we were a few years ago. With the strong
statements of President Bush and Attorney General Ashcroft,
there is an emerging consensus in America that racial profiling
is wrong and it should be brought to an end.
The legislation that Representative Conyers and I have
introduced, with at least 15 cosponsors in the Senate and 61
cosponsors in the House, would do just that. This legislation
is needed because Congress has a responsibility to protect the
fundamental constitutional rights of all Americans.
The End Racial Profiling Act bans racial profiling and
requires Federal, State and local law enforcement to take steps
to cease and prevent the practice. The bill would allow the
Justice Department or individuals the ability to enforce the
prohibition on racial profiling by filing a suit for injunctive
relief.
The bill also requires Federal, State and law enforcement
agencies to adopt policies prohibiting racial profiling, to
implement effective complaint procedures, to implement
disciplinary procedures for officers who engage in the
practice, and to collect data on stops. In addition, it
provides for data collection to allow Congress to monitor
whether the steps it has outlined to eliminate and prevent
racial profiling have been effective.
Our bill also conditions certain Federal funds to State and
local law enforcement agencies on their compliance with those
requirements. But it also authorizes the Attorney General to
provide incentive grants to assist agencies with their
compliance with this Act. Finally, the bill would require the
Attorney General to report to Congress 2 years after enactment
of the Act and each year thereafter on racial profiling in the
United States.
I am very pleased that some of the lead cosponsors of the
Senate and the House bills are here today with us, and we will
hear from them shortly.
The vast majority of law enforcement officers put their
lives on the line everyday to protect all of us and discharge
their duties honorably, but we also now know that there are
some law enforcement officers who do not. We must work to
change the hearts and minds, and most importantly the behavior
of those officers who engage in racial profiling.
I am very pleased that a growing number of State law
enforcement officials have begun to take steps to address the
problem of racial profiling, including in my own State of
Wisconsin. Many of them also understand that this bill will
complement their efforts and is necessary if we are truly going
to end racial profiling in America.
I understand that the Department of Justice has not yet
taken a position on the bill. But given the President's and the
Attorney General's strong comments, and the fact that Assistant
Attorney General for Civil Rights Ralph Boyd is beginning work
this week, Representative Conyers and I, as well as Senator
Clinton and Senator Corzine, whom I have worked with closely,
look forward to a productive dialog with the Department. We
hope ultimately, of course, to gain the administration's
support for this bill and to work together to enact it into law
during this Congress.
So, again, I want to welcome the witnesses. I look forward
to your testimony.
Now, I would like to turn to the distinguished Ranking
Member of the Subcommittee, Senator Strom Thurmond, for his
opening remarks. I thank the Ranking Member for his cooperation
in putting this hearing together.
Senator Thurmond?
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Thurmond. Thank you, Mr. Chairman. I appreciate
your commitment to the issue of racial profiling. It is clearly
unconstitutional for law enforcement to stop or search people
solely because of their race, and this cannot be tolerated.
However, there is widespread agreement that the vast majority
of law enforcement officers are dedicated professionals who act
without bias of any kind.
I am concerned that the legislation we are considering
today proposes a solution that is based on lawsuits and Federal
mandates that would micromanage law enforcement at all levels.
While I respect the chairman's intentions, I do not believe
that this is the right approach.
Last year, members proposed a Justice Department study of
traffic stops to better understand this issue. Attorney General
Ashcroft supports such a study and is actively reviewing all
Federal law enforcement practices in this area. The Justice
Department is also providing grants to law enforcement in many
related areas, such as for the installation of video cameras in
police cars. I think there is bipartisan support for this type
of approach.
I am afraid that this bill would handcuff the vast majority
of police on the Federal and State levels who treat all
citizens fairly and equally. We should not make the fight
against crime harder to win.
I appreciate our witnesses being here today to discuss this
important topic.
Thank you, Mr. Chairman.
[The prepared statement of Senator Thurmond follows:]
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
I appreciate your commitment to the issue of racial profiling. It
is clearly unconstitutional for law enforcement to stop or search
people solely because of their race, and this cannot be tolerated.
However, there is widespread agreement that the vast majority of
law enforcement officers are dedicated professionals who act without
bias of any kind. There is no consensus on how common the problem is,
and we are still trying to understand how to measure this complex issue
and interpret the data that is being collected. We need to learn much
more about racial profiling before we develop sweeping solutions that
reach across every aspect of law enforcement on the federal and state
levels. It is hard to conclude that current efforts across America to
address racial profiling are inadequate when we are still learning what
they are.
I am concerned that the legislation we are considering today
proposes a solution that is based on lawsuits and federal mandates that
would micromanage law enforcement at all levels. While I respect the
Chairman's intentions, I do not believe that this is the right
approach.
Last year, members including the current Chairman proposed a
Justice Department study of traffic stops to better understand this
issue. Attorney General Ashcroft supports such a study, and is actively
reviewing all federal law enforcement practices in this area. The
Justice Department is also providing grants to law enforcement in many
related areas, such as for the installation of video cameras in police
cars to record traffic stops. I think there is bipartisan support for
this type of approach, which we could enact without further delay if
all of us on the Committee worked together.
The legislation we are considering today is very different from the
approach that was promoted just last year. We must keep in mind that
the question is whether any person is discriminated against because of
his or her race, but the bill goes far beyond this worthy goal. It
defines racial profiling so broadly that it will interfere in
legitimate law enforcement efforts to locate and apprehend criminal
suspects. Also, in its effort to promote lawsuits, it creates legal
presumptions that make law enforcement officers prove that they are
innocent, making lawsuits much easier. Discrimination should not be
assumed simply based on statistics that show a racial disparity in a
given population. In any event, lawsuits are already an option today
for unconstitutional racial profiling even without this legislation.
I do not believe we should view lawsuits as the favored way to
solve problems in America, and this issue should be no exception. More
lawsuits will not promote cooperation and the search for common ground;
they will discourage it. Moreover, lawsuits will divert scarce law
enforcement resources away from solving crime and into the pockets of
lawyers.
Further, the bill would take much-needed federal grants away from
states and localities if they do not fall in line with federal
mandates. We should help states in their legitimate, innovative efforts
to address this issue, but we should not micromanage them from
Washington.
I am afraid that this bill would handcuff the vast majority of
police on the federal and state levels who treat all citizens fairly
and equally. In the past few years, law enforcement has started to turn
the tide against violent crime and drugs in America. This is evident in
many predominately minority communities, where the citizens have
demanded that the police help them take their streets back from the
criminal element. We should not act in such a way that we reverse this
success, even unintentionally. We should not make the fight against
crime harder to win.
I appreciate our witnesses being here today to discuss this
important topic.
Chairman Feingold. I thank the Ranking Member.
I have received a statement from one of our cosponsors,
Senator Kennedy, who is also a member of the Committee and the
Subcommittee who could not be here. I ask unanimous consent
that his statement be placed in the record, without objection.
[The prepared statement of Senator Kennedy follows:]
Statement of Edward M. Kennedy, a U.S. Senator from the State of
Massachusetts
Mr. Chairman, I agree with the President and the Attorney General
that racial profiling is wrong, and we must do all we can to end it.
Racial profiling is a gross insult to American ideals and the American
dream. No one anywhere in America deserves to be stopped, searched, or
harassed because of the color of his or her skin.
The End Racial Profiling Act is a strong and needed response to
this problem. The bill prohibits racial profiling, and provides for the
collection of data on traffic stops to make sure that the practice is
rooted out wherever it occurs. The bill also authorizes incentive
grants to help state and local police agencies develop more effective
and fairer policing practices.
This bill will strengthen law enforcement. As Commissioner Kelly
will testify, the practice of racial profiling threatens the ``very
compact of trust and fairness'' between government and the people.
Police officers are indispensable public officials whose dedication and
courage deserve our highest respect. By eliminating the practice of
racial profiling, this bill will enhance the stature of police officers
across the country and their ability to serve and protect the public.
I commend Senators Feingold, Corzine, and Clinton, and
Representatives Conyers and Shays, for their leadership on this issue.
All of us are encouraged by the strong statements by President Bush and
Attorney General Ashcroft against racial profiling in recent months.
This important legislation deserves to be enacted into law as soon as
possible.
I appreciate your commitment to the issue of racial profiling. It
is clearly unconstitutional for law enforcement to stop or search
people solely because of their race, and this cannot be tolerated.
However, there is widespread agreement that the vast majority of
law enforcement officers are dedicated professionals who act without
bias of any kind. There is no consensus on how common the problem is,
and we are still trying to understand how to measure this complex issue
and interpret the data that is being collected. We need to learn much
more about racial profiling before we develop sweeping solutions that
reach across every aspect of law enforcement on the federal and state
levels. It is hard to conclude that current efforts across America to
address racial profiling are inadequate when we are still learning what
they are.
Chairman Feingold. I now turn to another member of our
Subcommittee and one of the coauthors of the bill, Senator
Schumer, of New York.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Well, thank you, Mr. Chairman, and I want
to start by thanking you not only for holding this hearing but
for making this the strong cause that you have made it, not
even in this session of the Senate but those that go much
further back. I am proud to cosponsor S. 689.
I also want to really commend my fellow Senator from New
York, Senator Clinton, who has been a leader on this issue from
the first day she got here. She campaigned on the issue and
rolled up her sleeves and got to work by working with you on
this issue. Her energy has been terrific and really helped
drive the debate on this extremely important subject.
The same is true of Senator Corzine, who also talked about
this issue in his campaign--we get New Jersey television in New
York, so I saw that--and has again proceeded with the same
diligence. So I think it is a great team to be here, and I am
proud to be a cosponsor of the bill.
Mr. Chairman, our Constitution, our laws, our oldest
traditions and our highest ideals dictate that, in America,
justice is blind. Yet, irrefutable evidence has accumulated
over the years that law enforcement officers, the gateway to
our justice system, have all too often made decisions about who
to look for, who to stop, who to search, and who to arrest on
the basis of what people look like instead of what they are
doing.
I have always been a big supporter of the men and women in
blue who do the critical and dangerous work of keeping us safe,
and I do not believe that there are disproportionate numbers of
racists or bigots in the ranks of our police. I don't think
anyone here is suggesting that.
The problem of racial profiling is a problem of systematic
law enforcement procedures that use race as a proxy for
probable cause. They use as a proxy for probable cause, and
when you think about it, that is a horrible thing. In some
ways, the problem is even more difficult to address because it
runs a lot deeper than just a handful of bad-apple officers in
the sense that it is endemic in our society. Still, we have no
choice but to tackle it.
Those of us who have been fortunate enough to have never
experienced this phenomenon can only imagine what it is like,
and the tape that you showed, Mr. Chairman, brings it to life
much better than in any way I could characterize. I have talked
to people about this, young men, young women, who are trying
extra hard to be model citizens.
I will never forget my law professor at Harvard University
told us a story--and this was, I hate to say it, 27 years ago--
of how he was stopped in the suburbs of Lexington,
Massachusetts, regularly and searched because there were so few
black people living in that suburb. So the feelings of rage, of
helplessness, of total marginalization you would have if you
had been pulled over, even though you had nothing to arouse
legitimate suspicion, are enormous.
Four of out ten African-Americans report they have
experienced exactly those emotions, because that is the number
who say they have been unfairly stopped by the police for no
other reason that skin color. And the problem isn't limited to
so-called ``driving while black.'' Latino Americans face a
double whammy, first, of being profiled as law-breakers and, if
that doesn't hold up, as illegal immigrants.
Most amazing of all, we now know that racial profiling, in
addition to being both immoral and unconstitutional, doesn't
even work on its own terms. The data that has come from
Maryland, New Jersey and other States that have been collecting
data show that the profile turns out to be wrong. Stopping
greater numbers of minorities doesn't lead to greater
apprehension of criminals.
Mr. Chairman, your bill recognizes this. It bans racial
profiling without handcuffing police, it provides for greater
collection of data on searches and detentions, and it
authorizes grant funding for better training on cross-racial
encounters, new technology, and better verification procedures.
Its theme is to work with law enforcement, not against it, to
solve this problem, and that is a key.
In the final analysis, our system of justice has no more
sacred obligation than ensuring equal justice under the law. We
are taking another step toward fulfilling that duty today, Mr.
Chairman, and I want to commend you and Senators Clinton and
Corzine for your work and accomplishment.
Chairman Feingold. I thank the Senator from New York.
I now turn to the Ranking Member of the full Committee,
Senator Hatch, for an opening statement.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman, for allowing
me to make some opening remarks upon the convening of this
important hearing.
Racial profiling is an issue that has generated widespread
public concern. Fortunately, unlike many of the issues we
confront here in Washington, there has emerged a consensus
concerning the fundamental point of the debate. Racial
profiling, also known has bias-based policing, is wrong, it is
unconstitutional, and it must not be practiced or tolerated.
Mr. Chairman, you and I, the President, the Attorney General,
and indeed every Member of Congress would agree that law
enforcement activity must never be undertaken because of one's
race.
Many have strong and diverging views, however, concerning
how best to address this problem at this time. Today, we will
hear some of those views from our witnesses and we should
listen to them. Given this lack of consensus, political and
community leaders must act prudently and responsibly in
addressing this issue, for the stakes are quite high.
Under no circumstance should we allow this to become a
political issue mired in partisan politics. The policy
decisions we make in this area could well have a profound
effect on policing in America. And as many of us know, the
resulting costs to public safety are all too often felt in
those communities that can least afford the carnage.
Witness, for example, what happened in Cincinnati, Ohio,
over the last few months as the police have retreated from
minority neighborhoods in the face of accusations of racism: 59
shooting incidents in the city, with 77 gunshot victims,
compared with 9 shootings and 11 victims in the comparable 3
months last year. All but one of the victims has been African-
American.
In my view, S. 989, the End Racial Profiling Act of 2001,
though well-intentioned, is the wrong approach at this time.
The provisions of the legislation suffer three flaws, as I view
it: they are unnecessarily controversial, they are
unjustifiably punitive to State and local authorities, and,
above all, I believe they are premature.
First, the legislation plunges into the hornet's nest of
controversy with, among other things, its definition of
``racial profiling.'' As will become abundantly clear when our
second panel begins testifying, there is no widely accepted
definition of this term, and police organizations, community
leaders and academics disagree even among themselves about what
is or is not permissible police activity. Before stamping a
label on certain police activity, we ought to at least identify
the activity in question.
Compounding the problem concerning the definition of racial
profiling, the legislation provides for lawsuits by persons who
believe that they have been profiled. To bring such a lawsuit,
such a plaintiff need only show ``proof that the routine
investigatory activities of law enforcement agents in a
jurisdiction have had a disparate impact on racial or ethnic
minorities.'' Thus, mere evidence of disparate impact is
evidence of a violation of this Act. Yet, there is no
definition of what is or is not a disparate impact. Is 51
percent to 49 percent sufficiently disparate, or must it be
something more substantial? Does it mean that any policy that
happens to impact adversely must be eliminated?
While the bill allows a plaintiff to sue only for
declaratory or injunctive relief, not damages, entire police
departments could be tied up in litigation even when there is
no proof of intentional discrimination. Creating a litigation
nightmare for law enforcement will unfairly drain community
resources, divert manpower, and further foster an ``us versus
them'' mentality. Instead, we should focus on encouraging
positive relationships between law enforcement and the
communities they serve.
Finally, supporters of the legislation fail to justify the
need for these types of measures. Indeed, just last year we
were exploring ways to encourage the Federal, State and local
authorities to gather and study data to determine the
prevalence of racial profiling. Yet, here we are today, a
little more than 1 year later, considering legislation that, in
effect, assumes that racial profiling has infected every police
agency in this country.
Out of fairness to our Nation's police officers, and out of
concern for our citizens' safety, we should be cautious about
proceeding in this manner. Let me suggest, then, that at this
point in the debate we focus on identifying the scope of the
problem. Let us follow the lead of the Attorney General, who
has committed the Department of Justice to gathering and
analyzing data, and his civil rights chief, Ralph Boyd, Jr.,
who has publicly pledged to examine that data, train and
monitor local police, and bring lawsuits whenever appropriate.
For our part here in the Congress, let us also suggest a
return to the legislation that you, Mr. Chairman, cosponsored
last Congress, the Traffic Stops Statistics Study Act. That, in
the view of many, including the American Bar Association,
constitutes the appropriate point of departure in this debate.
And as Professor Harris, one of today's witnesses, testified
before this Subcommittee last year, ``data collection...is
surely the first step on [the] long road'' to addressing this
issue.
That approach has the added virtue of having been endorsed
by Attorney General Ashcroft. He has on several occasions
indicated his strong support for the Traffic Stops Statistics
Study Act. He did that on the Committee, when he was a member
of this Committee, and he is doing it as Attorney General. He
has informed us that he is prepared to move forward in
gathering and studying such data.
You may recall that in February of this year, the Attorney
General wrote me and urged the Judiciary Committee to promptly
consider moving legislation along the lines of the Statistics
Study Act. I would hope that as we continue to debate the
necessity of S. 989, we at least move forward on legislation
that will assist the Attorney General's efforts. I believe that
legislation would go through both Houses of Congress quite
fast, and it should.
Thus, Mr. Chairman, while I cannot support the legislation
that is the subject of today's hearing, I pledge to work with
you. You do a great job. You are very sincere and you are a
very knowledgeable member of this Committee. I pledge to work
with you to ensure that the Department of Justice obtains the
data we need for a thorough, fair-minded examination of police
practices in this country. In the meantime, let us be careful
not to impugn the men and women who daily put their lives on
the line for all of us. We must never forget that the vast
majority of them serve their communities with distinction and
with honor.
I want to thank you, Mr. Chairman. I look forward to
learning from our witnesses today and I appreciate you allowing
me to make this statement.
Chairman Feingold. I thank you, Senator Hatch, and I do
appreciate the offer to work together on this. I will say just
in reference to one of your remarks that there is absolutely
nothing in our bill or in our intent or in our actions that
suggests that we assume that racial profiling exists in all
police departments. We don't believe that, it isn't true, and
that isn't our position.
Senator Hatch. That is good.
Chairman Feingold. But other than that, I do look forward
to addressing each of those points. Thank you, Senator Hatch.
Now, I would like to turn to Senator Durbin, who not only
is a strong cosponsor of this bill, but has also initiated
other efforts on this general issue of racial profiling.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman, and thanks for
this hearing on the End Racial Profiling Act. I am proud to be
an original cosponsor of this legislation.
From the earliest days of our Nation, we have struggled
with the issue of race. Despite all of our progress, there is
grim evidence that justice in America is far from color-blind.
Racial profiling is a serious problem that appears to be
particularly salient in the enforcement of our Nation's drug
laws. Consider these numbers: African-Americans represent 12
percent of the American population, 13 percent of its drug
users, but 35 percent of those arrested for drug possession and
55 percent of those convicted of drug possession and over 60
percent of those incarcerated for these crimes. This the
reality of racial disparity in America's criminal justice
system, despite the fact that five times as many whites use
drugs as African-Americans.
In my home State of Illinois, the situation sadly is even
worse. Ninety percent of drug offenders admitted to Illinois
prisons are African-Americans, the highest percentage in the
country. And consider this statistic: for every 100,000 white
male adults in Illinois, 20 were sent to prison for violating
drug laws. For every 100,000 African-American adult males in
Illinois, 1,146 were sent to prison, a rate 57 times higher.
According to the Sentencing Commission, which tracks and
analyzes criminal justice statistics, approximately 32 percent
of black men aged 20 to 29 are incarcerated, on probation, or
on parole. Compare this to 1 in 15 of white men in the same age
range. These disparities do not reflect who uses or sells
drugs, but who is stopped and searched. Racial profiling played
a role in producing these statistics, and as a result it has
helped to erode the credibility of law enforcement that the
majority of our men and women in blue bring to this noble
profession.
The U.S. Customs Service has the difficult task of
enforcing drug laws at our borders. A few years ago, I learned
that women of color were being inappropriately and
disproportionately targeted for strip searches and x-ray
searches by the U.S. Customs Service officials in Chicago. I
ordered a GAO study and found that there was literally no
connection between the women who faced this humiliating
experience in Chicago's airport and the effort to stop drugs
coming into America. With that data, I introduced legislation,
the Reasonable Search Standards Act, S. 799.
Commissioner Ray Kelly is here today and he is going to
testify. Before he left the U.S. Customs Service, he did an
extraordinary thing. He didn't argue about our findings, he
didn't demand more evidence, he didn't ask that we sue him. He
made a difference, he changed the policy. He prohibited
searches based on race. He requested and demanded the
documentation of reasons for a search, and he trained the
personnel at the Customs Service about search procedures.
Customs data shows that these changes that Commissioner
Kelly on his own initiative put in place resulted in a
significant decrease in the number of minorities searched and a
dramatic increase in the number of positive searches yielding
drugs. Body searches were slashed by 80 percent. There was an
increase in drug seizures of 38 percent. This is strong
evidence that good police work can spare people of color the
indignity of criminal suspicion.
I am glad you are here, Commissioner Kelly, and I am
looking forward to your testimony. I am sorry you are no longer
at the Customs Service, but I hope that we can implement
legislation that made your forward-looking rule changes
permanent law in this country.
Each of us will join in some resolution at some point to
condemn racial profiling. I guess the ultimate responsibility
we face is whether or not we are prepared to make those changes
in the law that will end racial profiling.
Senator Feingold, your bill is a good step in that
direction. Thank you for this hearing.
Chairman Feingold. Thank you so much, Senator Durbin, for
your words and your actions in this area.
Now, I am very pleased that we can call our first panel of
witnesses. Let me first thank you for your patience. As you
know, it is rare to have this number of opening statements at a
Subcommittee, but it is a good sign that there is tremendous
interest on this Judiciary Committee on this issue and the
Senate is going to take it very seriously.
I am very pleased to have distinguished members of both the
Senate and the House on hand to testify today. The development
of the End Racial Profiling Act has been a bicameral effort
from the start, and that is reflected in our first panel.
The customary protocol for such panels is for Senators to
testify before House members, but with the indulgence of my
colleagues from the Senate, I would like to first call on
Representative John Conyers, of Michigan, who has been the
leader in the fight on this issue long before most Americans
had even heard the term ``racial profiling.'' Of course, he is
the Ranking Member of the House Judiciary Committee and the
second-longest-serving member of the House of Representatives.
Then we will hear from Senator Corzine and Senator Clinton and,
after them, from Representative Shays.
It has been, Representative Conyers, a great honor and a
privilege to work with you on this issue during the last two-
and-a-half years. I am grateful to you for taking the time to
join us today and you may proceed with your testimony.
STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Representative Conyers. Thank you, Chairman Feingold and
members of the Subcommittee and my friend, the former chairman
of the full Committee, Orrin Hatch. I am delighted to be here.
I was instructed to come over here and not break protocol,
no matter what I did. This is a case of the last shall be
first, and I am flattered, grateful and happy to be here with
this very distinguished panel.
Then you put on my Mayor of the city of Detroit. I am now
coming before him on top of it. Thanks a lot, Chairman
Feingold, you really know how to fix me up at home and on the
other side of the Hill.
I am in great spirits today because several Congresses ago
we started this discussion of racial profiling, and I must tell
you that there are very few subjects that have caught on, taken
on a life of their own and come into the public screen to such
an extent that we are all brought here today.
We are here because the President of the United States has
asked us to get a bill together and bring to him because he
wants to end racial profiling. I am not sure how many
definitions are floating around out there, but I can tell you
one thing: racial profiling violates the equal protection
clause. You cannot stop, detain or arrest people because of the
color of their skin, ethnicity or national origin. It is as
simple as that. That is a good starting point for any legal
analysis.
Number 2, I just want to be put on the record as stating
that there are so few African-American men who have not
experienced racial profiling or know someone who has that you
could put them all inside the space between this dais and where
you are. It has happened to everybody, and so I will set the
record straight so nobody has to ask me, has it happened to me.
Yes, it has happened to me. It happened to me, though, before I
became a Congressman.
Actually, in all due respect to all of our police, I think
I get the benefit of the doubt. But when I was a lawyer, Mayor
Archer may remember, that there was a Detroit policeman they
called Texas Slim, and I always ended up in criminal court. On
night he was following me down Linwood. What would he be doing
on Linwood, in Detroit, in the evening? I got a ticket because
the light that illuminates my back plate was not working. That
is what he ticketed, and he did it with a straight face and it
was strictly business. I was not offended. I did not ask him
any questions or make any protests.
But for most other people, this is an incredibly searing
experience. What if you lived in Detroit right at the border of
Dearborn. In Detroit--most of you know where that is--you have
to go through Dearborn to get to your house at night and you
get stopped on an average of once every 2 weeks? I mean, you
know the police officers and they know you at this point.
This is one of these little issues that has been eating
away at people, and in the finest sense of being constructive
legislatively we have put together this very modest proposal. I
can tell you our staffs will begin meeting with the Attorney
General's staff this week or next week. The cooperation has
already begun, I am happy to say.
I want to just put to rest that this legislation does not
allow individual suits for money damages. First of all, anybody
that has a beef against any kind of law enforcement or
municipality, county, State or Federal, can sue individually
right now and 42 U.S.C. 1983. However, there are a lot of
immunity problems they have to get over, but this legislation,
does not authorize one single suit at all for money damages.
This is a bill that asks the Federal, the State, the county and
the city law enforcement agencies to begin to keep records
about racial profiling, and that we will support them if there
are any problems about how we should go about it. We would be
very happy to help fund data collection and other policies that
help end the practice.
Most police chiefs have told me already that 99 percent of
any information is already on a traffic ticket, but suppose a
person is stopped and there is no ticket. Then we have to make
sure we keep track of it. So we are following this in, I think,
a very excellent way.
Senator Feingold, I have to single you out as one who has
really moved in a very reasonable way, and the leadership you
have shown here is really commendable. So I am happy to join
with you in this discussion.
Let me point out it was when Senator Ashcroft was chairing
one of these Committees that we had the first hearings on
racial profiling in the U.S. Senate. He is the one who has
called me to say I want to work with you; get us some
legislation, let's get going with it. The President of the
United States has also said that. I think we could not be off
to a smoother and better start.
Now that we have admitted Laura Murphy, of the ACLU, into
the hearing room, I can sleep more comfortably tonight, and so
can you, Chairman Feingold. Reverend Wendell Anthony, the
chairman of the Detroit Chapter of the NAACP, sends his
congratulations to you.
Thank you for allowing me to begin this testimony.
[The prepared statement of Representative Conyers follows:]
Statement of Hon. John Conyers, Jr., a U.S. Representative in Congress
from the State of Michigan
I want to start this morning by thanking Senator Feingold for
making the issue of Racial Profiling a priority in the Senate Judiciary
Committee. He is certainly no stranger to this issue and has walked
with me every step of the way in pursuing legislation that will bring
the practice of racial profiling to an end. I am glad to see strong
bipartisan support of racial profiling legislation around the nation
and firmly believe that the time is ripe for the passage of federal
legislation.
Since I first introduced racial profiling legislation in the 105'
Congress, the pervasive nature of racial profiling has gone from
anecdote and theory to well-documented fact. Data collected from
numerous states show beyond a shadow of a doubt that African-Americans
and Latinos are being stopped for routine traffic violations far in
excess of their share of the population or even the rate at which such
populations are accused of criminal conduct.
Most fundamentally, racial profiling has not proven an effective
tactic for fighting crime. A recent Justice Department report found
that although African-Americans and Hispanics are more likely to be
stopped and searched by law enforcement, they are much less likely to
be found in possession of contraband. This pattern of over-inclusive
stops and detentions lies at the heart of the breakdown of trust
between police and communities.
Although the vast majority of law enforcement agents nationwide
discharge their duties professionally and without bias, we as a nation
should not tolerate discrimination by a small minority of police
officials. Racial profiling is a double-barreled assault on our social
fabric. Nearly every young African-American and Hispanic male has been
subjected to racial profiling or has a family member or close friend
who has been a victim of this injustice.
Racial profiling sends the message to young African-Americans,
Hispanics and other minorities that the criminal justice system, and
therefore the system at large, belittles their worth. More broadly, it
causes a breakdown of the trust on which community policing depends.
Unless that trust is built and nurtured, the police can't do an
effective job of protecting our communities and it makes an already
difficult job more dangerous.
The End Racial Profiling Act reflects changes in the legal and
political climates that have occurred since traffic stop data
collection legislation was offered during the 106' Congress. Since that
time, statistical evidence from around the country has indicated data
collection alone is not enough to arrest the racial and ethnic
disparities in stops and detentions. In Maryland, for example, even
after litigation and data collection, the pattern of disparities in
traffic stops has persisted. This is why our bill includes a ban on
racial profiling.
No American should walk through any city, drive down any road or
travel through any airport, looking over their shoulder and waiting for
the inevitable police stop. While this legislation may not stop racial
profiling tomorrow, it will send the message that the federal
government is committed to the equal protection of civil rights and
begin a comprehensive process of rooting-out bias in law enforcement.
Chairman Feingold. Thank you. We are so fortunate to have
you as our leader on this issue, and thank you for coming over.
Now, I am awfully happy to turn to two Senators who came
here this year to the Senate and immediately indicated that
they wanted to work on this, and work on it everyday, and that
is exactly what they have done.
First, we will turn to Senator Jon Corzine, of New Jersey.
Senator Corzine brought up the issue of racial profiling in our
very first meeting when he came to the Senate. He told me that
ending racial profiling was one of his highest priorities, and
has consistently pressed for the toughest, most comprehensive
bill we can pass.
Senator Corzine, thank you for all your work. The floor is
yours.
STATEMENT OF HON. JON S. CORZINE, A U.S. SENATOR FROM THE STATE
OF NEW JERSEY
Senator Corzine. Mr. Chairman, I am truly pleased to be
here to speak on this issue that is so important to both my
State and the Nation. I also want to thank you for your very
thoughtful and strong leadership on this issue. I want to thank
Senator Clinton, who from the very first day, as you suggested,
has talked about this with you, myself and others, making this
a top priority.
I also am extraordinarily grateful for the leadership in
the House of Representatives. Congressman Conyers has been a
hero on this for as long as this has been an issue. We look to
him for guidance and he has been terrific. Congressman Shays
and others have also stood up for what is right. Particularly,
I want to note two New Jersey Republicans who have stood up on
this issue, Congressmen Frelinghuysen and Ferguson, who are
cosponsors. This is truly something that people recognize as a
bipartisan initiative.
The practice of racial profiling, Mr. Chairman, is the
antithesis of America's belief in fairness and equal protection
under the law. Stopping people on our highways, on our streets
and at our borders because of the color of their skin really
tears at the fabric of what we are about as a Nation. Our
nation is built on the premise that we are all created equal.
Racial profiling undermines that principle. It is morally and
constitutionally wrong.
But not only is it wrong, it is an ineffective law
enforcement tool. As Senator Schumer noted, there is no
evidence that stopping people of color adds up to catching bad
guys. In fact, statistics show that singling out black or
Hispanic motorists for stops and searches does not lead to a
higher percentage of arrests.
Mr. Chairman, racial profiling has been a longstanding,
serious concern in New Jersey. Yet, it took a tragedy on the
New Jersey Turnpike to really focus our attention on the
problem and motivate action. In 1998, four young African-
American men were driving on the turnpike on their way to North
Carolina, hoping to get a college basketball scholarship. Two
State troopers pulled them off the road and the frightened
driver lost control of the van. Dozens of shots were fired.
Three out of the four kids were shot. Fortunately, all
survived.
After an extensive investigation, one State trooper was
charged with aggravated assault and another with attempted
murder. The two officers' records of previous investigatory
stops had shown a pattern of race-based interventions.
Unfortunately, the shooting of these young people was just
the tip of the iceberg. In 1999, the State attorney general
found that for years State troopers had practiced racial
profiling on the New Jersey Turnpike, stopping individuals for
routine investigatory activities based on their race.
Around the same time, the Justice Department came to New
Jersey to investigate the allegations and established a consent
decree with the State requiring the State to institute a number
of important reforms, including new training programs, strong
oversight procedures, hiring of additional minority officers,
and collection of statistics to monitor progress. Then-Governor
Christine Todd Whitman concurred with the decree and its
remedies.
Fortunately, despite our historic failures on the subject,
New Jersey responded in a thoughtful, bipartisan manner. The
Governor and newly appointed attorney general worked diligently
to implement the consent decree. The Black and Latino Caucus
held public inquiry into racial profiling, documenting its
history and prevalence. The Senate Judiciary Committee, chaired
by a Republican, probed how top officials handled racial
profiling by the State police and proposed a series of added
safeguards, including banning so-called consent searches.
Racial profiling is an important issue in New Jersey, but
it is also a national problem. This hearing will make that
clear, and I think Senator Durbin's statistics are very
telling. In fact, I hope that New Jersey can be a model on how
to respond, if not when to respond.
In my home county, Union County, New Jersey, county
prosecutor Tom Manahan, again a Republican, worked closely with
the chiefs of police in our county to develop a set of policies
that will foster greater accountability among police officers
and deter them from using race as a reason to stop civilians.
They also established a whole series of monitoring and data
collection procedures that will be tremendous indicators.
Unfortunately, despite the growing recognition that racial
profiling exists and is wrong, we still have a lot of work to
do. In New Jersey, our statistics haven't changed even though
there has been this very visible discussion of the problem, and
anxious actions taken to remedy it.
A recent survey of police officials across the Nation found
nearly 60 percent of police officials say racial profiling is
not a problem in their community. Fewer than 20 percent have
adopted policies to outlaw the practice. Clearly, it is hard to
solve a problem if you don't see it as a problem. We need to
move on this. I think this legislation is a major step, a next
step in America's continuing struggle to provide civil rights
for all Americans.
I am not going to go through the legislation because you
have outlined it, but it is important to deal with the
definition, to require statistical records, and then to provide
real carrots and sticks to encourage law enforcement and to
support them in doing the right thing.
This bill is not about blaming law enforcement. It is not
designed to prevent law enforcement from doing its job. In
fact, it tries to help make that happen. Law enforcement is
most effective when there is confidence in society about its
fair and balanced treatment of everyone in front of the law.
That is what this bill is about. I am proud to be a supporter.
I want to do everything we can to make sure that we bring about
prompt passage of the End Racial Profiling Act.
Chairman Feingold. Senator Corzine, thank you for your
tremendous devotion to this issue.
Our next witness needs no introduction. Senator Hillary
Clinton, from the State of New York, has impressed everyone, of
course, with her passion and hard work both before coming to
the Senate and in the Senate. But I can tell you on this one it
is very, very real. She has worked with us everyday on this
issue and she has made a valuable contribution to the
legislation. I am so glad we have her so deeply involved in
this bill.
Senator Clinton, I apologize for how long it has taken. You
may proceed.
STATEMENT OF HON. HILLARY RODHAM CLINTON, A U.S. SENATOR FROM
THE STATE OF NEW YORK
Senator Clinton. Thank you, Mr. Chairman. I appreciate very
much the opportunity to testify here with not only my
distinguished colleagues and other elected officials, but also
members of the law enforcement community and other experts who
have worked diligently to try to identify a problem, define a
problem, and then to come up with some ways of addressing that
problem.
I particularly want to thank those members of the law
enforcement community who have worked with us over the past
months to help shape this bill. A number of them will be
addressing you.
I particularly appreciate Senator Durbin's identifying Ray
Kelly, who did a superb job as the Commissioner of the U.S.
Customs Service, and before that the Commissioner of the New
York City Police Department. Under his leadership, as he will
tell you specifically, the Customs Service made unprecedented
strides both in preventing racial profiling and in seizing
contraband. That is the kind of strategy that we are hoping to
really highlight and further because of this bill.
I am a very strong supporter, as I think every one of us
both on the Committee and those of us testifying, of law
enforcement. Where would be without those men and women who are
on the front lines? The people I speak with really want the
kind of community support that makes for good law enforcement.
Time and time again, officers have told me how they really
try to do the best job they can, often under incredibly
stressful and difficult circumstances, and they need the
support of the communities they police. They need to be able to
count on the respect of those whose streets they walk and whose
homes they protect.
We believe, those of us who have worked on this
legislation, that we are taking a step toward improving law
enforcement and supporting our men and women in uniform, while
sending a clear signal that an unconstitutional practice that
is deplored uniformly across our country has to cease, both
because it is wrong and because it undermines law enforcement
instead of promotes the safety of our communities.
I want to thank, certainly, Chairman Feingold for his
leadership on this important issue, and my friend and
colleague, Senator Corzine, who came to the Senate with this
issue on the forefront of his agenda. And I want to thank
Congressman Conyers. I couldn't believe it when you were
introduced as the second-longest-serving member of the House.
You started at a very, very young age, John, I know. No one
believes that. I mean, that is hard to accept. And thanks also
to Congressman Shays for his leadership.
As has been reported, we held the press conference
announcing this legislation on the House side under Congressman
Conyers' leadership and had strong bipartisan support,
including from Congressman Asa Hutchinson, who is about to, I
assume, be confirmed as the head of DEA. I was very pleased to
see Congressman Hutchinson there supporting this bill because
when he assumes the responsibility for the agency that is
attempting to keep drugs out of our country and off our
streets, he has already committed to ending racial profiling in
part because he understands it is not an efficient law
enforcement tool for doing what we need to do to stop drug
abuse.
Now, we are here because we know that this is a problem,
and I want to commend the President and the Attorney General
for their public support and their private efforts to try to
come to some bill that can have the kind of bipartisan,
bicameral support that we have attempted to muster behind this
bill.
I am hopeful with the President's strong support and his
statement in the address to Congress that we will see a bill on
his desk before the end of this year. I think it is entirely
possible. The Attorney General has put it on the top of his
agenda, and as Congressman Conyers has said, discussions have
already begun to try to work that out.
One point I just want to underline is the issue of
effective criminal justice. We started some years ago, under
the leadership of people like Ray Kelly, community policing and
data collection to try to take our information that was
available and combine it with the streets smarts that our law
enforcement personnel brought and really focus in on where
crime was occurring.
We have had great results in decreasing crime. We hope that
we are going to keep driving the crime rate down because by and
large it does impact most drastically on those communities that
are most vulnerable. What we want to do in this bill, if one
reads the description of the findings and the policies that are
proposed, is really to support law enforcement with grants,
with training, with the kinds of attitudes that will enable the
vast majority of law-abiding people to feel very comfortable
that the highest professionalism is at work in their police
departments.
We know that in New York City there has been strong support
for legislation passed unanimously by the New York City
Council, supported both by Mayor Giuliani and Police
Commissioner Kerik, to begin publicly releasing data concerning
the operations of the 40,000-member New York City police force,
the largest police force in the world. We know that collecting
this data and making it public will enable our police
departments to do an even better job.
So there is much to be gained from the kind of positive
approach that this legislation takes, which really is intended
to be both a prohibition of racial profiling and a real
statement of support for positive, effective law enforcement.
I thank the Committee for this hearing and for the
attention and concern that you are going to give to this issue,
and look forward to working with not only you, but the
administration in coming up with a bill that can be passed and
signed by the President this year.
Chairman Feingold. Senator Clinton, you speak eloquently
for all of us especially when you emphasize that all of us who
support this bill are interested in maintaining and improving
the excellent relationships we have with law enforcement in our
States. That is what the bill is intended to do and if you look
at the bill closely, that is exactly what it does. We want to
work closely with all law enforcement to make sure that is the
end result as well.
Thank you, Senator Clinton.
[The prepared statement of Senator Clinton follows:]
Statement of Hon. Hillary Rodham Clinton, a U.S. Senator from the State
of New York
Chairman Feingold and members of the subcommittee, thank you for
giving me the opportunity to testify today here with my distinguished
colleagues, other elected officials, members of the of the law
enforcement community, and other experts who understand the tremendous
harm that racial profiling causes and why we must work together to
bring this conduct to an end.
I also want to express my gratitude to my esteemed colleagues,
Chairman Feingold for your leadership and Senator Corzine for his
tremendous efforts in helping craft the End Racial Profiling Act of
2001. I believe this bill is thoughtful, balanced and is designed to
bring people together, not to divide.
In addition to my colleagues here in the Senate, I also want to
acknowledge the efforts of Representative Conyers, the Ranking Member
of the House Judiciary Committee, and a leader on this issue.
Representative Conyers has worked to obtain the support of both
Democrats and Republicans alike, including Republican Representatives
Asa Hutchinson, Chris Shays, Tim Johnson, Constance Morella, and Jim
Greenwood. I thank them all of them for their support and hope we will
be able to build upon this strong bipartisan support in the Senate.
Finally, I want to say Mr. Chairman that I am so very proud that
testifying before the Committee today is Ray Kelly, former Commissioner
of the New York City Police Department and more recently, the former
Commissioner of the U.S. Customs Service, a capacity in which he served
from August 1998 through January 2001. Under his leadership, the
Customs Service made unprecedented strides in preventing racial
profiling and improving its relations with the community it serves.
* * *
We are all here today, Democrats and Republicans alike, law
enforcement and those of us who are protected every day by law
enforcement, because racial profiling is simply wrong. It is unjust. It
relegates honest, law-abiding citizens to second-class status when they
suffer the embarrassment--the humiliation--the indignity--of being
stopped or searched--and in some cases even physically harmed--simply
because of their race, ethnicity or national origin.
In addition to being unjust, however, racial profiling is also an
ineffective law enforcement tool. The experts at John Jay College of
Criminal Justice and elsewhere will tell you that the evidence is
unquestionably clear, for example, that the vast majority of Blacks and
Hispanics who are stopped or searched have committed no crime. Indeed,
rather than serving as an effective law enforcement tool, racial
profiling achieves one thing and one thing only--increasing the level
of mistrust between law enforcement and the communities it is charged
with the heavy burden to protect.
That result serves no one.
It fails to serve law enforcement because a critical component of
truly effective law enforcement is strong community-police relations,
partnerships in which law enforcement and our communities are working
together to reduce crime and to make our communities as safe as they
can be.
Racial profiling fails to serve prosecutors, because law-abiding
people who lose their faith in the promise of equal protection also sit
on juries and are called upon to assess the credibility of police
officers, who often play a key role in getting convictions for
criminals.
Most important, however, racial profiling fails to serve our
community and instead strikes at the very foundation of our democracy.
That is why it must end and end now.
What does this bill do and what doesn't it do?
It is my hope, Mr. Chairman, that as our colleagues consider this
legislation, they understand that this bill is not about blaming law
enforcement or saying that law enforcement is bad or doesn't do a good
job. We know that this is simply not true.
Those who uphold our nation's laws on the streets where we live are
men and women of courage. They go to work each day without the same
degree of certainty that most of us have that they will return home
safely, because they never know when the next traffic stop, the next
domestic dispute, the next arrest will explode in their face. There is
a memorial here in Washington with the names of more than 14,000
American heroes, police officers, who gave their lives to make ours a
safer country.
What this bill does do is make very clear that racial profiling is
wrong and that law enforcement agencies that haven't done so already
should adopt policies and procedures to eliminate and prevent racial
profiling.
Some might ask, how can adopting policies and procedures help stop
racial profiling? Well, the experts at John Jay College will tell you
that in the 1960's and early 1970's, most police departments in this
country left it up to the individual officer to decide when to shoot to
kill. During that time, the racial disparity among persons shot and
killed by police was as high as eight African-Americans for every white
person, and very much higher among victims who were neither armed nor
in the process of assaulting a police officer.
During the 1970's and early 1980's, police departments enforced
strict standards, decreeing that deadly force could be exercised only
in defense of the life of the officer or another person. In the large
police departments in this country, these changes were accompanied by
reductions of as much as 51% in the number of civilians killed by
police. It also resulted in the significant reduction in the number of
officers killed in the line of duty. This is just one example of how
good policies and procedures can actually save lives without reducing
the effectiveness of law enforcement.
Recognizing the importance of policies and procedures to eliminate
and prevent racial profiling, this bill provides incentives for law
enforcement by giving grants to state and local law enforcement
agencies to use in ways they believe will be most effective for their
communities--whether to purchase equipment and other resources to
assist in data collection or to provide training to officers to improve
community relations and build trust.
Chief Bruce Chamberlin, a distinguished member of the law
enforcement community and the Chief of the Cheektowaga, New York Police
Department, has spoken to me and a number of my colleagues about the
importance of training and building relationships between law
enforcement and communities. His actions, however, have spoken even
louder than his words. He has taken the lead in Western New York in
forming the Law Enforcement and Diversity Team or ``LEAD'' program,
which exists to enhance communication and understanding between
suburban law enforcement agencies and the diverse citizenry of Western
New York. The LEAD team, sponsored by the National Conference for
Community and Justice and the Erie County Chiefs of Police, developed
one of the nation's leading programs--``Building Bridges''--to start a
dialogue between police officers and people of diverse cultural and
racial backgrounds.
The U.S. Department of Transportation has used excerpts from the
LEAD Team's ``What to do When Stopped by Police'' brochure for the
department's national publication. The program has been adopted by the
Buffalo and Cheektowaga school systems in the curriculum for high
schools students. And it helps develop good relations between police
and the community by eliminating some level of fear, distrust, and
skepticism.
Other New Yorkers have also worked to improve the relationship
between communities and law enforcement. New York's Attorney General,
Elliot Spitzer, has instituted training programs in an effort to try
and prevent racial profiling. In fact, just this past February through
April, the Attorney General's office conducted in-service training of
all members of the New Rochelle, New York Police Department at the
request of that department.
Just last week, New York City Mayor Rudy Guiliani and Police
Commissioner Bernard Kerik announced their support for legislation
passed unanimously by the New York City Council that would require the
public release of data concerning the operations of the 40,000 member
New York City police force, the largest police force in the world. We
know that collecting and publicly releasing data will assist the New
York City Police Department in doing all that it can to prevent racial
profiling and build better community relations.
Academia can also play a role in promoting trust between law
enforcement and the community. For example, the John Jay College of
Criminal Justice has begun to conduct a six-week free course for
members of the New York City Police Department on the racial and
cultural diversity of New York City. More than 600 police officers from
across New York City have enrolled in a course entitled: ``Police
Supervision in a Multiracial and Multicultural City.''
With this bill, efforts like those currently lead by Chief
Chamberlain, Attorney General Spitzer, John Jay College, and the City
of New York will be expanded throughout the country.
Mr. Chairman, more than a year ago when I spoke about these issues
at the Riverside Church in New York City, I said ``we must all be on
the same side.'' I am so proud that today--we are all here together--on
the same side, Republicans and Democrats alike, citizens, officers of
the law--to say that racial profiling is wrong and must end.
We are here to say that in fighting racial profiling, we can at the
same time forge even better relations between police and the
neighborhoods they patrol, as we wage a common effort to reduce crime
and make our communities safe.
Chairman Feingold. If anybody needs to leave at this point,
we will understand.
Perhaps one of the most foolish things I have done in a
long time is make Representative Shays go last. He is
brilliantly gathering signatures in the House on an issue I
care about, and the notion that I made him sit here for this
amount of time while he is moving the campaign finance bill
along makes me wonder.
Representative Shays. Is that the Feingold-McCain Act?
Chairman Feingold. It is McCain-Feingold, Shays-Meehan.
Representative Shays, we have worked closely together on
that issue for many years. We are good friends, and I am very
pleased that we have a chance to work together on a bipartisan
basis on this issue. Representative Shays is one of eight
Republicans who have cosponsored the House version of the End
Racial Profiling Act.
I thank you for your patience and for joining us today,
Representative Shays.
STATEMENT OF HON. CHRISTOPHER SHAYS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CONNECTICUT
Representative Shays. No patience required, Mr. Chairman.
Thank you, Chairman Feingold and Senator Thurmond, for
convening this hearing on the End Racial Profiling Act. I am
grateful to join with Senators Hillary Clinton and Jon Corzine,
and Representative John Conyers, Dean of the House, minus one,
in this bipartisan and bicameral initiative which addresses a
critical issue in need of greater public debate and action.
This hearing will surely help raise the public profile of this
issue, but it needs to result in concrete action.
Decades ago, with the passage of sweeping civil rights
legislation, this Nation attempted to amplify and extend our
constitutional commitment to equal protection and equal
treatment under the law. One remaining bastian of racial bias
cynically turns the law and law enforcement against the very
citizens it is the solemn duty of both to protect. The practice
of using race as a prime facie criterion for questioning or
arrest violates this commitment and flies in the face of
progress we have made toward racial equality.
With my colleague, Mr. Conyers, of Michigan, I am a
cosponsor of H.R. 2074, the companion bill to S. 989, to
require law enforcement agencies adopt policies and procedures
to eliminate racial profiling. The bill also holds States and
localities to the same high standard by making sure Federal
funds are not used to continue the practice. In taking these
steps, the legislation reaffirms a commitment to judging
individuals by their actions, not by their skin color.
This bill will protect citizens from the indignity and
stigma of profiling. It will also help law enforcement officers
perform their sworn duty of impartiality. On July 19, the
Government Reform Committee held a hearing on the benefits of
audio-visual technology in addressing racial profiling. Video
and audio systems can serve as an impartial third party,
protecting citizens against arbitrary police actions, while
reducing the risk of false or spurious racial profiling charges
against law enforcement personnel. These technologies, when
used effectively, should increase public confidence that
arrests are being made based on probable cause, not racial
stereotypes.
I don't walk in an African-American, Latino, or other
minority's shoes, but I do hear their cries for help, and so
have many other Americans. A large majority of Americans
believe racial profiling is widespread, and they want their
fellow American brothers and sisters to be protected by the
law, not to be victims of the law. These concerns are echoed in
the House and Senate with the introduction of this bipartisan
bill. I am truly encouraged by today's hearing, and I pray this
important legislation will be enacted into law.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Shays follows:]
Statement of Hon. Christopher Shays, a U.S. Representative in Congress
from the State of Connecticut
Thank you Chairman Feingold and Senator Thurmond for convening this
hearing on The End Racial Profiling Act. This bipartisan initiative
addresses a critical issue in need of greater public debate and this
hearing will surely help raise the public profile of this issue.
Decades ago, with the passage of sweeping civil rights legislation,
the nation attempted to amplify and extend our constitutional
commitment to equal protection, and equal treatment, under the law. One
remaining bastion of racial bias cynically turns the law, and law
enforcement, against the very citizens it is the solemn duty of both to
protect. The practice of using race as a prima facie criterion for
questioning or arrest violates this commitment, and flies in the face
of progress we have made toward racial equality.
With my colleague Mr. Conyers of Michigan, I am a sponsor of H.R.
2074, the companion bill to S. 989, to require law enforcement agencies
to adopt policies and procedures to eliminate racial profiling. The
bill also holds states and localities to the same high standard by
making sure federal funds are not used to continue the practice. In
taking these steps, the legislation reaffirms a commitment to judging
individuals by their actions; not by their skin. This bill would
protect citizens from the indignity and stigma of profiling. It would
also help law enforcement officers perform their sworn duties of
impartiality.
On July 19 the Government Reform Committee held a hearing on ``The
Benefits of Audio-Visual Technology in Addressing Racial Profiling.''
Video and audio systems can serve as an impartial third party,
protecting citizens against arbitrary police actions while reducing the
risk of false or spurious racial profiling charges against law
enforcement personnel. These technologies, when used effectively,
should increase public confidence that arrests are being made based on
probable cause, not racial stereotypes.
According to a 1999 Gallup Poll a majority of Americans believe
racial profiling is widespread. These concerns are echoed in the House
and Senate with the introduction of this bipartisan bill. I am
encouraged by today's hearing that this important legislation will be
enacted.
Again, thank you for focusing the subcommittee's attention on this
issue.
Chairman Feingold. Thanks so much, Chris. Now, go and get
the other signatures, please, in the House.
Thanks to all the members of the panel.
We are going to have a vote at 11, but before that we will
first turn to Senator Edwards for his remarks, briefly to
Senator Thurmond, and then there will be just a very brief
recess. I will run right over and vote, come back, and we will
start with the second panel.
Senator Edwards?
STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM THE STATE
OF NORTH CAROLINA
Senator Edwards. Thank you, Mr. Chairman. Mr. Chairman,
thank you for your leadership. We have all depended on your
knowledge and expertise on this issue and we will continue to
do so.
Before he leaves, I want to thank our witness, Congressman
Conyers, for your leadership on this and on similar issues for
such a long time. You are one of the great leaders in this
country and we thank you for what you have done for us.
Senators Clinton and Corzine--Senator Clinton has left, but
we thank you very much for your work on this.
Congressman Shays, not only on this issue, but also on
campaign finance, we are very appreciative of all the work that
you have done.
Others have said it, but all of us recognize that the brave
men and women who serve as law enforcement officers play a
critical role in this country protecting and preserving the
safety of our communities. We all should never understate our
appreciation for those efforts.
Unfortunately--and that is what this hearing is about--we
have also heard the stories about people being stopped in this
country solely because of their ethnicity and because of their
race. These stories are deplorable. They send a message of
bigotry and intolerance, and we have to send a clear message
that Congress will not tolerate this kind of behavior. That is
what this hearing is about and that is what this legislation is
about.
Let me just take a minute, if I can, and talk about what
has been going on in my State of North Carolina. About 2 years
ago, we became the first State in the country to pass law
requiring that data be collected in order to determine if
racial profiling is, in fact, taking place. An important aspect
of that law is that it only applies to State law enforcement,
so only the North Carolina State Highway Patrol is required to
collect this data on traffic stops. However, I should mention
that the legislation that is pending in the North Carolina
General Assembly now expands the data collection to all law
enforcement in the State of North Carolina.
So far, the information we have gotten has told us the
following things. First, the good news is that the number
African-Americans who were stopped by law enforcement in North
Carolina is not significantly greater than those that are not
African-American.
However, when it comes to searches, African-American males
are disproportionately singled out both as passengers and as
drivers. Nearly half of all drivers who were searched in my
State of North Carolina were African-Americans. Equally
disturbing is the fact that with regard to stops and searches,
Latino males were disproportionately singled out.
As surprising as these data are, this data is essential to
helping us understand the extent to which profiling is
occurring and will help provide us with the facts we need to
determine the remedies that are necessary.
For example, under the strong leadership of Colonel Richard
Holden, head of the North Carolina State Highway Patrol, all
North Carolina Highway Patrol officers are now required to
undergo diversity and integrity training. And the Colonel has
initiated a program in every county in the State where
community leaders, law enforcement and the general public get
together to discuss issues regarding police-community relations
and perceived problems. Suggestions on how to fix these
problems are also discussed. I commend the Colonel for this
work and all the other actions that he has taken.
Unfortunately, there are thousands of law enforcement
agencies at all levels of government that have not been as
proactive on the issue of racial profiling. We must provide an
incentive for them to do so. In terms of actual data
collection, in some instances local law enforcement agencies
such as those in Hendersonville, High Point, and Davidson
County, North Carolina, have experimented with data collection,
even though the law doesn't require them to do it. I applaud
them for doing that, but we have to do more.
Many law enforcement agencies around the country don't
collect this data and don't intend to do so. Most of those who
do collect the data are not subject to any kind of oversight.
Senator Feingold's bill, which I am a cosponsor of and strongly
support, provides a solution to these problems and will go a
long way toward ending the practice of racial profiling.
What will happen if the Federal Government does not act to
stop racial profiling? What kind of message are we sending to
our minority communities if we fail to act?
Mr. Chairman, I thank you and I thank the witnesses very
much for their work in this area.
Chairman Feingold. Senator Edwards, we are just delighted
to have you on the Committee, and I am especially delighted to
have you as a cosponsor and a partner on this effort.
We will now turn briefly to Senator Thurmond, who is not
able to return for the second panel and who I believe would
like to make a brief remark.
Senator Thurmond?
Senator Thurmond. Thank you, Mr. Chairman. I would like to
place into the record letters from the National Troopers
Coalition, the National Association of Police Organizations,
and the International Association of Chiefs of Police.
I would also like to place into the record the remarks of
Police Chief Reuben Greenberg made before the Cato Institute
earlier this year. Chief Greenberg is one of our witnesses
today. He does an outstanding job as the police chief for
Charleston, South Carolina, and I appreciate him taking the
time to be here today.
Thank you very much.
Chairman Feingold. Thank you, and, without objection, those
items will be placed in the record.
At this point, the Subcommittee will briefly recess, and I
will assure the witnesses I will be right back and we will
start with the second panel.
[The Subcommittee stood in recess from 11:06 a.m. to 11:24
a.m.]
Chairman Feingold. The Subcommittee will come back to
order. I thank everyone for your patience in the delay.
Now, I would like to bring up our second panel of
distinguished guests. We will start on my left with Mayor
Dennis Archer, of Detroit. Mayor Archer currently serves as the
president of the National League of Cities, on whose behalf he
is testifying today, and is a member of the American Bar
Association Board of Governors. He was instrumental in the
American Bar Association passing a resolution in 1999 against
racial profiling.
Mayor Archer, let me ask you and all of our witnesses, if
possible, to limit your remarks to 5 minutes. We have a large
panel here and I want to make sure that members of the
Committee have at least some chance to ask questions. Your
entire written statements will appear in the record of this
hearing.
Mayor Archer, I would like you to please proceed.
STATEMENT OF HON. DENNIS W. ARCHER, MAYOR, CITY OF DETROIT,
MICHIGAN, AND PRESIDENT, THE NATIONAL LEAGUE OF CITIES,
DETROIT, MICHIGAN; ACCOMPANIED BY OLDEN HENSON, CITY COUNCIL
MEMBER, HAYWARD, CALIFORNIA
Mayor Archer. Mr. Chairman and the absent members of the
Subcommittee, the National League of Cities is pleased to have
this opportunity to share its views on the End Racial Profiling
Act of 2001.
I am Dennis Archer, Mayor of Detroit, Michigan, and
President of the National League of Cities. With me today is
Council Member Olden Henson, of Hayward, California, who is
past chairman of the National League of Cities Public Safety
and Crime Prevention Committee. Council Member Henson has not
only taken a strong stand against racial profiling in his
community, but he has also helped develop our organization's
national policy against racial profiling as well.
The National League of Cities is the Nation's oldest
national association representing municipal interests in
Washington. The NLC's membership includes more than 18,000
cities, towns and villages across the country, with over
135,000 mayors and local elected officials.
As an aside, I will be submitting written testimony for the
record on behalf of the American Bar Association and our
position on this issue within 1 week.
On behalf of the National League of Cities, I would like to
express my gratitude to you, Mr. Chairman, for introducing S.
989, the End Racial Profiling Act of 2001. Your leadership on
this issue, along with that of Representative John Conyers, of
Michigan, clearly shows your commitment to addressing this
widespread practice of racial discrimination by Federal, State
and local law enforcement agencies.
The National League of Cities adopted a resolution against
racially based profiling in December 2000 which strongly
supports enactment of Federal legislation to provide financial
assistance to State and local law enforcement agencies. Such
assistance should help pay for training programs, equipment,
data collection and research as measures to prevent further
incidents and allegations of biased profiling.
Moreover, NLC's national municipal policy calls for a
constant commitment from all levels of government to ensure
that justice is dispensed equally and not based on race,
gender, education or economic status. In this regard, Mr.
Chairman, I convey the National League of Cities' strong
support for S. 989.
In March, the National League of Cities Board of Directors
reinforced our commitment to end racial profiling by adopting a
legislative action agenda which urges Congress and the
administration to enact legislation prohibiting racial
profiling. Additionally, NLC organized a broad coalition of 29
organizations on investing in communities, which includes youth
advocates, organized labor, homebuilders and other public
interest groups that have endorsed the same agenda to promote
racial justice.
I am sure that many of us here today have heard complaints
from citizens who have been stopped, searched, and even
harassed as a result of incidents where law enforcement
officers have detained them simply because of their race or
ethnicity rather than for appropriate law enforcement reasons.
As an elected official, I have fielded many concerns from
motorists who were victims of racial profiling because they
were allegedly in the wrong neighborhood or driving the wrong
car. Furthermore, there is no doubt that such discriminatory
practices undermine the sacred trust and respect between law
enforcement and the community, and erode the basic foundations
of effective community policing.
While it is the duty of local governments and law
enforcement to serve and protect all citizens, we must ensure
that this responsibility assiduously avoids racism and bigotry.
Although many cities have already implemented measures to
eradicate racial profiling within their police departments,
more efforts are needed to improve the credibility of law
enforcement in all communities.
This concern has been reiterated by the International
Association of Chiefs of Police, which has stated that the
highly publicized incidents of use of force, racial profiling,
corruption and instances of unethical behavior of police
officers and executives have laid the groundwork for many of
our citizens to believe that the problems are widespread and
deeply rooted.
The IACP also stated that the concerns of our citizens
encompass not only law enforcement, but all participants in the
criminal justice system, to the courts, to prosecutors, and to
corrections and probation officials. For all of these elements
to perform in an effective manner that ensures justice and
leads to orderly and peaceful communities, there must exist a
trusting and confident relationship with all of our citizens in
every part of our country.
As both proactive and corrective measures to ban racial
profiling, cities have held community forums and field hearings
on the problem, formed task forces with local stakeholders,
implemented sensitivity training for police, revised policies
on traffic stops and enforcement procedures, developed their
own data collection systems on profiling, and helped the United
States Department of Justice gather data and best practices on
addressing the problem.
To cite one example, Council Member Henson led the city of
Hayward's efforts to implement a data collection system on
traffic stops last year, along with a policy that strictly
prohibits racial profiling and outlines criteria that must be
met prior to officers stopping and searching a vehicle.
To address this problem nationally, however, the National
League of Cities supports the provisions included in your
legislation, along with sufficient funding to support local law
enforcement efforts for data collection, training and other
remedial measures needed to redress discriminatory law
enforcement practices.
Through existing grants such as the Local Law Enforcement
Block Grant and Community-Oriented Policing Services Program,
this new legislation will help augment the efforts of local law
enforcement agencies to collect the proper data on traffic
stops conducted, continue effective training for police
officers, and engage in interagency partnerships to address
racial profiling.
Mr. Chairman, while today's hearing focuses on remedial
actions for law enforcement, I want to add my voice to the fact
that a vast majority of law enforcement officers conduct
themselves in a professional manner and without bias. Such
exemplary work has helped reduce the national crime rate to an
all-time low.
To continue this success, however, all levels of government
must work together to ensure that the basic constitutional
rights of Americans are not compromised because of a perception
by some that race is an appropriate factor in the decision to
stop or search individuals.
Once again, the National League of Cities supports S. 989
as another opportunity for the Federal Government to continue
its longstanding partnership with State and local governments
for public safety. Through the work of legislators like
yourself, Mr. Chairman, Senators Hatch, Biden, and former
Representative Bill McCollum of Florida, local governments have
enacted numerous successful crime prevention programs through
block grants and community policing grants. We will continue to
utilize such funding to help improve community crime
prevention, while taking a strong stand against racism.
Finally, Mr. Chairman, I greatly appreciate your leadership
on this issue and look forward to working with you as this
crucial piece of legislation moves forward toward final
passage.
I would be happy to answer questions that you or the
Subcommittee may have. Thank you.
[The prepared statements of Mayor Archer follow:]
Statement of Hon. Dennis W. Archer, Mayor of Detroit, Michigan on
behalf of the National League of Cities, Washington, D.C.
Chairman Feingold and Members of the Subcommittee, the National
League of Cities (NLC) is pleased to have this opportunity to share its
views on the ``End Racial Profiling Act of 2001.'' I am Dennis Archer,
Mayor of Detroit, Michigan, and President of the National League of
Cities. I would also like to acknowledge Council member Olden Henson of
Hayward, California, who is a past Chairman of NLC's Public Safety and
Crime Prevention Committee.
The National League of Cities is the nation's oldest national
association representing municipal interests in Washington. NLC's
membership includes more than 18,000 cities, towns, and villages across
the country, with over 135,000 mayors and local elected officials, from
our nation's largest cities--New York and Los Angeles--to its smallest
member, Black Hawk, Colorado, with a population of 150. I ask that my
written testimony be submitted for the record along with this statement
from the American Bar Association.
On behalf of NLC, I would like to express my gratitude to you, Mr.
Chairman, for introducing S. 989, the ``End Racial Profiling Act of
2001.'' Your leadership on this issue, along with that of
Representative John Conyers of Michigan, clearly shows your commitment
to addressing this widespread practice of racial discrimination by
federal, state, and local law enforcement agencies.
The National League of Cities adopted a resolution against
racially-based profiling in December 2000, which strongly supports
enactment of federal legislation to provide financial assistance to
state and local law enforcement agencies. Such assistance should help
pay for training programs, equipment, data collection and research as
measures to prevent further incidents and allegations of biased
profiling. Moreover, NLC's National Municipal Policy calls for a
constant commitment from all levels of government to ensure that
justice is dispensed equally, and not based on race, gender, education,
or economic status. In this regard, Mr. Chairman, I convey NLC's strong
support for S. 989.
In March, NLC's Board of Directors reinforced our commitment to end
racial profiling by adopting a legislative action agenda, which urges
Congress and the Administration to enact legislation prohibiting racial
profiling. The call for such legislation is a strong acknowledgement
that all levels of government must work diligently to end
discriminatory policies and to ensure true equal opportunity.
Additionally, NLC organized a broad coalition of 28 organizations on
``Investing In Communities,'' which includes youth advocates, organized
labor, homebuilders, and other public interest groups, that have
endorsed the same agenda to promote racial justice.
I am sure that many of us here today have heard complaints from
citizens who have been stopped, searched, and even harassed as a result
of incidents, where law enforcement officers have detained them simply
because of their race or ethnicity, rather than for appropriate law
enforcement reasons. As an elected official, I have fielded many
concerns from motorists who were victims of racial profiling because
they were allegedly ``in the wrong neighborhood,'' or ``driving the
wrong car.'' There are thousands of personal stories across the nation
that have been widely publicized. Furthermore, there is no doubt that
such discriminatory practices undermine the sacred trust and respect
between law enforcement and the community and erode the basic
foundations of effective community policing. While it is the duty of
local governments and law enforcement to serve and protect all
citizens, we must ensure that this responsibility assiduously avoids
racism and bigotry.
Although many cities have already implemented measures to eradicate
racial profiling within their police departments, more efforts are
needed to improve the credibility of law enforcement in all
communities. This concern has been reiterated by the International
Association of Chiefs of Police (IACP), which stated that the ``highly
publicized incidents of use of force, racial profiling, corruption, and
instances of unethical behavior of police officers and executives have
laid the groundwork for many of our citizens to believe that the
problems are widespread and deeply rooted. The concerns of our citizens
encompass not only law enforcement but all the participants in the
criminal justice system--to the courts, to prosecutors, corrections,
and probation officials. For all of these elements to perform in an
effective manner that ensures justice and leads to orderly and peaceful
communities, there must exist a trusting and confident relationship
with all of our citizens in every part of the country.''
As both proactive and corrective measures to ban racial profiling,
cities have held community forums and field hearings on the problem;
formed task forces with local stakeholders; implemented sensitivity
training for police; revised policies on traffic stops and enforcement
procedures; developed their own data collection systems on profiling;
and helped the U.S. Department of Justice gather data and best
practices on addressing the problem. To cite one example, the City of
Hayward, California, instituted a data collection system on traffic
stops last year along with a policy that strictly prohibits racial
profiling and outlines criteria that must be met prior to officers
stopping and searching a vehicle.
To address this problem nationally, however, NLC supports the
provisions included in your legislation along with sufficient funding
to support local law enforcement efforts for data collection, training,
and other remedial measures needed to redress discriminatory law
enforcement practices. Through existing grants, such as the Local Law
Enforcement Block Grant and Community Oriented Policing Services
Program (COPS), this new legislation would help augment efforts of
local law enforcement agencies to collect the proper data on traffic
stops conducted, continue effective training for police officers, and
engage in interagency partnerships to address racial profiling.
NLC is also interested in the results of Attorney General John
Ashcroft's review of racial profiling within federal law enforcement
agencies. Similarly, we are encouraged by Congressman Asa Hutchinson's
commitment to ban racial profiling, as he has stated as nominee for
Director of the U.S. Drug Enforcement Administration.
Mr. Chairman, while today's hearing focuses on remedial actions for
law enforcement, I would be remiss if I did not acknowledge the fact
that a majority of law enforcement officers conduct themselves in a
professional manner, without bias. Such exemplary work has helped
reduce the national crime rate to an all-time low. To continue this
success, however, all levels of government must work together to ensure
that the basic constitutional rights of Americans are not compromised
because of perceptions by some that race is an appropriate factor in
the decision to stop or search individuals.
Once again, NLC supports S. 989 as another opportunity for the
federal government to continue its longstanding partnership with states
and local governments for public safety. Through the work of
legislators like yourself, Mr. Chairman, Senators Hatch and Biden, and
former Representative Bill McCollum of Florida, local governments have
enacted numerous successful crime prevention programs through block
grants and community policing grants. We will continue to utilize such
funding to help improve community crime prevention while taking a
strong stand against racism.
Mr. Chairman and Members of the Subcommittee, I greatly appreciate
your leadership on this issue, and look forward to working with you as
this crucial piece of legislation moves forward toward final passage. I
would be happy to answer any questions that the Subcommittee may have.
Thank you.
Additional Statement of Hon. Dennis W. Archer, Mayor of Detroit,
Michigan on behalf of the American Bar Association, Washington, D.C.
Mr. Chairman and Members of the Subcommittee, I am Dennis Archer,
Mayor of the City of the Detroit. I provide these remarks on behalf of
the American Bar Association, on whose board of Governors I serve.
The ABA, with over 400,000 members, is the largest voluntary
professional association in the world. The ABA has as its core mission
promoting the improvement of the system of justice and ensuring
equality of access to justice. In February 2001 the Board of Governors
designated 12 of our adopted policy positions as Legislative and
Governmental Priorities for the year. Legal Remedies to Eliminate
Discrimination is one of those designated priorities. Data collection
on the conduct of traffic stops offers an important legal remedy to
address the discriminatory practice of racial profiling by law
enforcement.
In Whren v. United States, 116 S. Ct. 1769 (1996), the Supreme
Court upheld a practice that has long been employed by law enforcement
officials in conducting traffic stops. The Court held that so long as
any violation of a traffic code occurs, no matter how technical or
insignificant, the police may stop an automobile and question its
driver. This is so even if the minor violation upon which the stop is
based is purely a pretext for the stop and the opportunity to conduct
further investigation. Moreover, the officer may question the motorist
regarding unrelated, and even imagined, criminal activity, and may seek
consent to search the vehicle and the occupants.
The large degree of discretion the Whren decision conferred upon
law enforcement officials was augmented by the recent decision in
Atwater et al. v. City of Lago Vista et al., No. 99 1408 (Decided April
24, 2001), in which a rule allowing police officers to take individuals
into custody for the most minor of offenses was advanced and upheld. In
her dissent in Atwater, Justice Sandra Day O'Connor warned, ``Indeed,
as the recent debate over racial profiling demonstrates all too
clearly, a relatively minor traffic infraction may often serve as an
excuse for stopping and harassing an individual.''
This line of cases challenges elected officials like myself who
must provide guidance to their jurisdiction's police departments on
good community relations. I know many men and women in law enforcement
and I know them well: as friends, as colleagues, as subordinates, and
as partners in community service. I know of the challenges they face,
by both my observations and their own accounts, and I believe that
every power at their disposal is there for the benefit of the community
they serve. However, I also know that it does not take many abuses of
power to corrupt a force or to drive a wedge of distrust between the
officers and those they have sworn to protect. Without the checks
provided by the court system, ferreting out those who abuse the power
with which they are entrusted proves difficult.
Data collection provides a useful tool in this regard. Rather than
depend upon citizens to bring attention to violations through the court
system or through administrative proceedings, data collection in
combination with a national study of the data collected and cross-
jurisdictional comparisons would be an effective managerial tool to
address racial disparities in traffic stops.
On behalf of the ABA I applaud you, Mr. Chairman for your
leadership in bringing this important measure to the Senate. I also
applaud Ranking Minority Member of the House Judiciary Committee, the
Honorable John Conyers for his leadership over many years in pursuing
this legislative response to this pressing national problem.
Thank you for the opportunity to submit the views of the ABA to the
Subcommittee.
Chairman Feingold. Thank you very, very much, Mayor Archer,
for your testimony, for your leadership and for the support of
the National League of Cities. I understand that you have to
return to Chicago shortly for an important meeting of the ABA,
so I would like to just ask you a question. I know that Mr.
Henson is willing to sit in if you have to leave.
If other Senators come, perhaps they will ask you a
question, but my question is to ask you personally if you would
like to tell us of any personal experience you have had with
racial profiling that you can share with this Subcommittee.
Mayor Archer. Mr. Chairman, the year that I was president
of the State Bar of Michigan, I was returning from our State
capital in Lansing. Driving back to Detroit, I found myself
surrounded by five or six police cars. I was asked to get out
of the car. I was put in the back seat of a police car while
they went through the inside of my car and my briefcase.
Upon discovering that I was president of the State Bar of
Michigan, they came back with a very strong apology, indicating
that I had somehow fit the profile of a drug-runner or somebody
who might be driving drugs down the freeway. That was back
during 1984-85.
More recently, a couple of years ago, my son, who is a
lawyer but does not practice, was out with a date who is now
his fiancee who happens to be an assistant prosecuting attorney
for Oakland County, in Michigan. They were driving through a
suburban community and they were pulled over to the side, guns
drawn.
They asked my son to get out of the car and back up with
hands up, frisked him, did not bother to ask for any
identification, and asked her to get out of the car. I believe
she was ultimately handcuffed. They did not ask her for any
identification or anything. They searched the car, and then
once they got his driver's license they looked at his name and
asked, because his name is Dennis Archer, Jr., if he was
related to Dennis Archer, the Mayor of Detroit. He said, yes,
that is my dad.
There was an incident that had occurred that involved
another different-colored Jeep Cherokee. There had been a
robbery in the area. There had been no report of any woman in
the car. They never bothered to stop and ask any questions
about who they were. It was widely reported in the paper. The
mayor of the suburban community, whom I happened to know,
called and shared his concern about it and remarked that his
dad was a former police officer in the city of Detroit and he
understood how I felt and how my son must have felt.
As Congressman Conyers has indicated, I don't know too many
people of color who do not know somehow who has been stopped
because either they have been in the wrong neighborhood, at the
wrong place, as far as the officer might have been concerned,
at the wrong time.
As I said in my opening remarks, let me just say that
overwhelmingly the vast majority of the police officers I have
met and know do a fine job. But what this does when it occurs
is it undermines, as it did with that youngster that was so
graphically shown at the beginning of this hearing--you saw
what it did with that youngster. That youngster had tears in
his eyes. I mean, that was something that will have a profound
effect on him for the rest of his life.
That is the kind of thing that will occur unless it is
stopped. That is the reason why your bill, Mr. Senator, is so
important that it pass the Senate this year as quickly as
possible.
Chairman Feingold. Thanks so much, Mayor Archer. I also
want to reiterate that I again make it very clear that I do not
think that most individual policemen engage in this kind of
activity, nor do most departments. But the number of incidents
like the ones you just shared here relayed by prominent
Americans in the last year is frankly just startling to me. I
appreciate your willingness to share those experiences.
Thank you very much, Mayor Archer.
Mayor Archer. Thank you, Senator.
Chairman Feingold. Our next witness will be Steve Young.
Mr. Young is currently the Vice President of the Fraternal
Order of Police, a position he has held since 1997. Before
that, he served as the President of the Ohio Chapter of the FOP
and was with the Marion City Police Department for 25 years.
I thank you for being here and you may proceed.
STATEMENT OF STEVE YOUNG, NATIONAL VICE PRESIDENT, FRATERNAL
ORDER OF POLICE, WASHINGTON, D.C.
Mr. Young. Thank you, Mr. Chairman, and good morning. I am
representing the Fraternal Order of Police. I am currently the
National Vice President. Our organization is the largest law
enforcement labor organization, representing more than 299,000
rank-and-file law enforcement officers in every region of the
country. I am here this morning to discuss our strong
opposition to S. 989, the End Racial Profiling Act, introduced
by Senators Feingold, Clinton and Corzine.
I want to begin by saying very clearly that racism is
wrong. It is wrong to think a person a criminal because of the
color of that person's skin. But it is equally wrong to think a
person a racist because of the color of the uniform. We can and
must restore the bonds of trust between law enforcement and
minorities. To do so requires substantial effort to find real
solutions. The solution this bill provides is to identify the
problem as racist police officers.
Mr. Chairman, I was struck by Senator Durbin's remarks this
morning because they demonstrate what effective police managers
do if they learn of a potential problem with their policing
practices. They change it and implement new strategies.
In his example, Commissioner Kelly did not wait for
Washington to act or for Congress to drop a bill or launch an
investigation. The problem that Commissioner Kelly perceived
was with the agency he commanded and he resolved. If police
management today were as effective as Commissioner Kelly, I
wouldn't be here today, this hearing wouldn't be necessary, and
this legislation would never have been written.
The so-called practice of racial profiling is being hyped
by activists, the media and others with political agenda who
presuppose that a man or a woman in a police officer's uniform
is inclined to be racially biased. This is just not so.
There is a mistaken perception on the part of some, perhaps
including the authors of this bill, that the ugliness of racism
is part of the culture of law enforcement. I am here today not
only to challenge this perception, but refute it entirely.
To begin with, the legislation's definition of racial
profiling is far too broad. The bill prohibits the use of race
to any degree in selecting individuals to be subject to even
the most routine investigatory action. This means that absent
an eyewitness or other description of a specific suspect's race
or ethnicity, law enforcement officers can never use race as a
factor, even if it would help them to identify a suspect,
prevent a crime or lead to an arrest.
What does this mean to the officer on the beat? No minority
will be stopped, searched or questioned, no matter how
suspicious the activity, without a specific eyewitness account.
Measures like this can only lead to situations like we now have
in Cincinnati. Eighty-five people have been wounded or killed
in 73 separate shooting incidents since the riots in April.
Last year, during the same timeframe, there were 9 shootings
and 11 victims. None of the shootings since April have received
media attention, like the death of Timothy Thomas, or even that
of Ricky Moore, who ambushed and attempted to kill Officer
Thomas Haas just last week. Why? Do we as a Nation not care
about black-on-black violence? The Over-the-Rhine community
does, and that includes the police officers who live and work
there.
I also want to question this legislation's proposal to use
statistical data against law enforcement officers and agencies
in legal action against them. This is a terrible precedent to
set. This bill assumes that racial profiling has occurred
solely on the basis of a statistical disparity.
Section 102(c) of the bill provides that demonstrating that
law enforcement activities disparately impact racial or ethnic
minorities constitutes prima facie evidence of illegal
activity. The effect of this presumption is not expressly
spelled out in the legislation, but it is very clear to law
enforcement.
The resulting litigation burden on law enforcement agencies
will be dramatic. After all, once a disparate impact is
demonstrated, it will be up to the law enforcement agency to
somehow prove itself innocent of engaging in the unlawful use
of race in its procedures and practices. More significantly,
each officer's individual enforcement action will be faced with
the same burden.
No one ought to be stopped solely on the basis of their
race. This practice is wrong and does not serve the law
enforcement mission. But to contend that the successful
practice of profiling, which does not exclusively consider
race, be abandoned when it has proved to be a successful tool
to prevent crime and catch criminals, is not the answer. If
this practice is misused or misunderstood, then it must be
corrected. Racism is never a legitimate law enforcement tool.
Mandatory data collection is also not sound policy from a
public safety perspective because it would require law
enforcement officers to engage in the collection of
sociological data. When you add to the list of things that
police officers have to do, you are necessarily subtracting
from the law enforcement mission. Police officers are supposed
to prevent crime and catch the crooks, not collect data for
Federal agencies.
How can we achieve a color-blind society if policies at the
Federal level require the detailed recording of race when it
comes to something as common as a traffic stop? What next? Will
the passengers' race need to be recorded? Some traffic stops
result in the arrest of the passengers.
What about the officer's race? Should that be recorded so
that officers can be assigned to beats based on their ethnic
background? And what if the officer is unable to determine the
driver's race? Will police officers now be required to ask for
driver's license, registration, and proof of ethnicity, please?
Legislation like S. 989 emphasizes racial differences. It
will, in fact, make police officers much more aware of race,
when our objective should be to deemphasize the race of the
suspect. Racial tensions increase, not decrease, if this bill's
measures are given the force of law.
I do not know if, let alone how, we as a Nation can solve
the problems of racism, but I do know what will and will not
work in the profession of law enforcement. There is a mistaken
perception that the ugliness of racism is part of the culture
of law enforcement. It is incumbent on all of us to correct
that perception. This will was written with this mistaken
perception in mind and it reinforces it.
This legislation is not good public safety policy and will
not result in good policing. It will not help to rebuild the
trust between law enforcement and the minority community. For
these reasons, the Fraternal Order of Police strongly opposes
the bill and I urge this Subcommittee to reject it.
Mr. Chairman, I thank you for the opportunity to appear
before the Subcommittee today.
[The prepared statement of Mr. Young follows:]
Statement of Steve Young, National Vice President, Fraternal Order of
Police
Good afternoon, Mr. Chairman and distinguished members of the
Senate Subcommittee on the Constitution, Federalism and Property
Rights. My name is Steve Young, I am a twenty-five year veteran of the
Marion, Ohio City Police Department. I am the National Vice President
of the Fraternal Order of Police. The F.O.P. is the nation's largest
law enforcement labor organization, representing more than 297,000
rank-and-file law enforcement officers in every region of the country.
I am here this morning to discuss our strong opposition to S. 989, the
``End Racial Profiling Act,'' introduced by Senators Feingold, Clinton
and Corzine.
I want to begin by saying very clearly that racism is wrong. It is
wrong to think a person a criminal because of the color of his or her
skin. But it is equally wrong to think a person a racist because of the
color of his or her uniform. This bill is a ``solution'' bill, but it
unfortunately identifies the ``problem'' as racist police officers. The
so-called practice of ``racial profiling,'' hyped by activists, the
media and others with political agendas, is one of the greatest sources
of stress between law enforcement and the minority community in our
nation today. But the solution cannot, as this bill does, presuppose
that a man or woman in a police officer's uniform is inclined to be
racially biased. This is just not so.
The so-called practice of ``racial profiling'' is, in fact, only
part of the larger issue. That larger issue is a mistaken perception on
the part of some that the ugliness of racism is part of the culture of
law enforcement. I am here today not only to challenge this perception,
but refute it entirely.
We can and must restore the bonds of trust between law enforcement
and minorities; to do so requires substantial effort to find real
solutions. It requires that we resist our inclination to engage in
meaningless ``feel good'' measures that fail to address the substance
of our problem. It requires that we resist using hyperbole and
rhetorical excess to place blame. This legislation does both of these
things and we strongly oppose it. Open and honest communication builds
trust--snappy sound bites and bills with the premise that law
enforcement officers are racist do not.
I do not believe that S. 989, the ``End Racial Profiling Act'' will
help to repair the bonds of trust and mutual respect between law
enforcement and minority communities. Quite the opposite--I believe it
will widen them because it is written with the presumption that racist
tactics are common tools of our nation's police departments. This is
wrong and is a great disservice to the brave men and women who put
themselves in harm's way every day and night to keep our streets safe.
Let me explain by addressing some of the bill's specifics.
First of all, we believe that the legislation unnecessarily defines
and bans ``racial profiling.'' ``Racial profiling'' is not a legitimate
police practice employed by any law enforcement agency in the United
States. The United States Supreme Court has already made it very clear
that ``the Constitution prohibits selective enforcement of the law
based on considerations such as race,'' and that ``the constitutional
basis for objecting to intentionally discriminatory application of the
laws is the Equal Protection Clause.'' Whren v. United States, 517 U.S.
806, 813 (1996). Further, as one Court of Appeals has explained,
``citizens are entitled to equal protection of the laws at all times.
If law enforcement adopts a policy, employs a practice, or in a given
situation, takes steps to initiate an investigation of a citizen based
solely upon that citizen's race, without more, then a violation of the
Equal Protection Clause has occurred.'' United States v. Avery, 137
F.3d 343, 355 (6th Circuit 1997).
The United States Constitution itself prohibits ``racial
profiling,'' making Federal legislation defining or prohibiting such
activity unnecessary. I am sure that there is no one on this
Subcommittee or in the United States Senate who would disagree that our
Constitution prohibits the practice of ``racial profiling.''
Further, the F.O.P. contends that the legislation's definition of
``racial profiling'' is far too broad. The bill prohibits the use of
race ``to any degree'' in selecting individuals to be subject to even
the most routine investigatory action, excepting only those situations
in which race is used ``in combination with other identifying factors
when the law enforcement agent is seeking to apprehend a specific
suspect whose race, ethnicity or national origin is part of the
description of the suspect.''
This means we might as well disband the F.B.I.'s Behavioral Science
Unit, whose work includes conducting high-impact research and
presenting a variety of cutting edge courses on topics such as Applied
Criminal Psychology, Clinical Forensic Psychology, Crime Analysis,
Death Investigation, and Gangs and Gang Behavior. The unit's personnel
are primarily Supervisory Special Agents and experienced veteran police
officers with advanced degrees in the behavioral science disciplines
who focus on developing new and innovative investigative approaches and
techniques to the solution of crime by studying the offender, and his/
her behavior and motivation. Sometimes, their profile of a suspect
contains racial information, because race can and does have an impact
on our psychology. In some cases, it may be the only physical
description law enforcement has to go on. The profile provided by this
unit in its work on the Unabomber case, for example, suggested that the
suspect was a white male. Generally speaking, serial killers are much
more likely to be white males than any other race or gender.
Under this legislation, we would be unable to use information of
this kind absent an eyewitness or other description of a specific
suspect's race or ethnicity. This bill is very specific on this point:
law enforcement officers can never use race as a factor--even if it
would help them to pursue an investigation, identify a suspect, prevent
a crime or lead to an arrest. The proposed legislation would therefor
ban a whole range of activities beyond the already unconstitutional,
purely race-based activity. The legislation would also apply to Customs
and immigration-related enforcement activities, as well as criminal law
enforcement efforts.
What does this mean to the officer on the beat? That no minority
will be stopped, searched or questioned no matter how suspicious the
activity without a specific eyewitness account? Measures like this can
only lead to situations like we have now in Cincinnati. Eighty-five
(85) people have been wounded or killed in seventy-three (73) separate
shooting incidents since the riots in April. Last year during the same
time frame, there were nine (9) shootings and eleven (11) victims. None
of the seventy-three (73) shootings since April have received media
attention like the death of Timothy Thomas. Or even that of Ricky
Moore, who ambushed and attempted to kill Officer Thomas Haas. Why? Do
we as a nation not care about black-on-black violence? The Over-the-
Rhine community does, and that includes the police officers who live
and work there. Hamilton County Prosecutor Mike Allen said of the
neighborhood, ``It's like the killing fields, it's like the Wild West
down here. There is still the same lawlessness that went on during the
riots. And the criminals know that the police are now reluctant to take
action.''
Lieutenant Ray Ruberg of the Cincinnati Police Department said,
``Our discretion has been limited. . .The racial profiling forms policy
also went into effect in May, and a lot of officers now feel they have
to articulate for every stop and that, in turn, will limit stops.''
Keith Fangman, the president of the local Fraternal Order of
Police, said ``The city has never seen this level of violence. This is
an epidemic of crime.''
The numbers bear all three of these observations out. Last year
there were nine (9) shootings between April and July--this year there
were seventy-three (73). Arrests have dropped fifty percent (50%) since
April and traffic stops have dropped by sixty percent (60%).
Every cop on the beat in Cincinnati knows that if something goes
wrong, even the slightest mistake when made in that split second, their
jobs, lives and families could be at risk. Good policing, pro-active
policing that deters and prevents crime, cannot occur in these
conditions.
This bill would elevate that problem to a national level. Criminals
in our communities will know that the police have their hands tied and
can no longer be effective.
This same pattern is being repeated throughout the nation. When the
mayor of Minneapolis accused his police force of ``racial profiling,''
traffic stops dropped sixty-three percent (63%).
``Solutions'' are being presented by politicians to a dubious
problem that they cannot define. The result is a deleterious effect on
public safety and the maligning of our country's police officers.
I also want to question this legislation's proposal to use
statistical data against law enforcement officers and agencies in
court. This is a terrible precedent to set. This bill assumes that
``racial profiling'' has occurred solely on the basis of a statistical
disparity. Section 102(c) of the bill provides that demonstrating that
law enforcement activities disparately impact racial or ethnic
minorities constitutes prima facie evidence of illegal activity. The
effect of this presumption is not expressly spelled out in the
legislation, but it is very clear to law enforcement. The resulting
litigation burden on law enforcement agencies will be dramatic--after
all, once a ``disparate impact'' is demonstrated, it will be up to the
law enforcement agency to somehow prove itself innocent of engaging in
the unlawful use of race in its procedures and practices.
The legislation thus presumes illegal activity solely from evidence
of a statistical disparity, notwithstanding the bill's finding that
``[t]he vast majority of law enforcement agents nationwide discharge
their duties professionally, without bias, and protect the safety of
their communities.'' If the ``vast majority'' of police officers are
conducting themselves professionally and without bias, why does a
statistical disparity change that?
There is no study or other hard data that can withstand even
cursory scrutiny which can substantiate claims that police
systematically practice selective enforcement against minorities. None.
Even the finding of former New Jersey Attorney General Peter Verniero
that found fifty-three percent (53%) of consent searches--searches that
the driver consents to--between 1994-98 were minorities is meaningless.
It is meaningless because Attorney General Verniero did not include
racial information on searches that were denied. He mixes stops,
searches and arrests from different time periods. But the most
important reason that this statistic is invalid is because there is
nothing to compare it to--why is it ``too many?'' Statistics from other
government sources in New Jersey demonstrate that minorities are vastly
overrepresented in the drug trade. Over sixty percent (60%) of drug and
weapons arrests in New Jersey are black, even though they make up less
than fourteen percent (14%) of the population. Given this, State police
search rates are proportionate.
Statistically, minorities have a greater chance of being crime
victims because crimes occur more frequently in areas with a large
minority population. Good policing means going after criminals and
patrolling areas where crimes are committed. This is good police work--
not racism.
Consider the case of the Arlington County Virginia Police
Department, which responded to demands from the black community to step
up enforcement against drug dealers in minority neighborhoods. The
police instituted aggressive motor-vehicle checks, revived the use of
``jump out'' squads and cracked down on quality-of-life offenses in an
effort to make dealers uncomfortable in the neighborhood. By the end of
last summer, it was clear the new enforcement strategy had worked,
earning the police deserved praise from the community as a whole. But
the new policing strategy, which was devised in response to the
disproportionate victimization of minorities by minorities, generated a
lot of data showing ``disproportionate'' minority arrests. If this bill
were adopted, any of the minority criminals arrested and prosecuted
could bring legal action against the County of Arlington, the
department or the arresting officer. The criminal would be able to
point to the ``disparate impact'' on the minority community and have
evidence--prima facie evidence, mind you--in support of any action
brought pursuant to Title I of S. 989.
To use statistical data without an adequately sophisticated
benchmark for analysis is bad policy. The law cannot consider
individual enforcement incidents as racially motivated by using flawed
data and reckless analyses establishing a ``disparity.''
I also want to say a word about the police practice of criminal
profiling. This is a legitimate and effective law enforcement tool
which I believe is being unfairly maligned in the media and here on
Capitol Hill because it is now associated with race. Race can be a
factor in a criminal profile, but it is never the only factor, nor is
it the most significant factor. It is simply one of many.
No one ought to be stopped solely on the basis of their race; this
practice is wrong and does not serve the law enforcement mission. But
to contend that the successful practice of profiling--which does not
consider race exclusively--be abandoned when it has proved to be a
successful tool to prevent crime and catch criminals is not the answer.
If this practice is misused or misunderstood, then it must be
corrected. Racism is never a legitimate law enforcement tool.
When any employer is considering applicants, they have an idea of
not only the skills and abilities that the job requires, but also what
kind of person would make the best fit--a ``profile,'' if you will.
Character matters, which is why law enforcement managers conduct--or
ought to conduct--extensive background checks to ensure that the person
who will carry the badge is of the highest caliber.
I ask the Subcommittee to also consider the practice of crime-
mapping, which, for all intents and purposes can also be referred to as
geographic profiling. This, too, is proving to be an extremely useful
crime-fighting and crime-prevention tool. It has evolved far beyond
push pins on a wall map to become sophisticated computer models that
allow law enforcement to ``predict'' crimes and establish more
effective patrols to enhance public safety.
Crime mapping data can and does use such demographic factors such
as population density, race and poverty levels. I have attached to my
testimony a simplified ``crime map'' of homicides committed in
Washington, D.C. from 1994-95. In the time frame examined, seven
hundred and sixty-five (765) homicides were committed--twenty (20) of
which were west of the 16th Street ``line'' and only one (1) which was
committed west of Rock Creek.
Crime is human activity and therefore has spatial relationships and
characteristics that can be geographically plotted. The same profiling
is also useful in crime prevention and crime fighting when applied to
crime victims. Racial data is important here, too. The crime map
provided shows the overwhelming preponderance of homicides in
Washington, D.C. in 1994-95 were committed in predominately black
areas. Is this racial profiling?
[GRAPHIC] [TIFF OMITTED] T0475.001
Nationally, according to the Bureau of Justice Statistics, there
were 5.1 homicide victims per 100,000 non-Hispanic white males in
1995--the rate for blacks that same year was 57.6, more than 10 times
the white rate. Most violent crime is intraracial--more than 80 percent
of homicides where we know the race of the killer are either white-on-
white or black-on-black crimes. Given this data, how can we adopt a
measure that would prevent its use in solving homicides if we cannot
consider the race of the suspect unless there is an eyewitness
description?
What is also offensive to me as an American is that the legislation
focuses on protecting racial and ethnic minorities, rather than
protecting all individuals from discrimination on the basis of race and
ethnicity. Unlike all other Federal antidiscrimination statutes, which
generally protect all individuals from discrimination on the basis of
race, portions of this legislation are geared to protecting only racial
and ethnic minorities. For example, the ``disparate impact'' provisions
found in section 102(c) of the bill are available only to racial and
ethnic minorities. Any legislation that specifically targets only
members of certain races, while excluding members of other races,
presents very real equal protection problems.
Again, to use Washington, D.C. as an example, the unfairness of the
bill is plainly demonstrated. According to the most recent census,
30.8% of this city's population is white and sixty percent (60%) is
black. If this bill were to become law, if thirty-two percent (32%) of
all persons arrested in Washington were white, this ``disparity'' would
not be evidence under Title I of the bill. However, if sixty-one
percent (61%) of all persons arrested were black, this would be a
``disparate impact'' and could be used in any legal action taken
against the Metropolitan Police Department. How does this help ease
racial tensions in this city or across the country?
The bill also misstates current law by reading the U.S. Supreme
Court's decision in Whren v. United States (1996) to hold that ``the
racially discriminatory motive of a police officer in making an
otherwise valid traffic stop does not warrant the suppression of
evidence.'' To the contrary, according to the unanimous decision in
Whren, ``the Constitution prohibits selective enforcement of the law
based on considerations such as race,'' and that ``the constitutional
basis for objecting to intentionally discriminatory application of the
laws is the Equal Protection Clause.'' 517 U.S. at 813.
The legislation also states that ``[r]acial profiling is not
adequately addressed through suppression motions in criminal cases,''
implying that suppression motions are currently the sole legal remedy
available against the so-called practice of ``racial profiling.''
However, numerous remedies do exist under current law to redress
constitutional equal protections violations, including actions for
money damages as well as prospective relief under 42 U.S.C. Section
1983, 42 U.S.C. Section 2000(d) et. seq., and 42 U.S.C. Section 14141.
The legislation also imposes a number of mandates on State and
local governments in violation of the principles of Federalism. The
bill mandates that all State and local governments collect data,
pursuant to Federally established standards, to determine whether
``racial profiling'' is taking place as a condition of receiving
Federal monies--even if there is no evidence or complaint that a
particular agency has engaged in such activity. Noncompliance with this
mandate is punishable by the withholding of Federal funds. These
provisions may even violate the constitutional limits of the ability of
Congress to regulate State and local governments as a condition of
Federal funding. On a number of occasions, the Supreme Court has
expressed a narrow view with respect to Federal power to regulate State
and local governments pursuant to Section 5 of the Fourteenth
Amendment, absent substantial evidence that constitutional rights are
being violated.
Mandatory data collection is also not sound policy from a public
safety perspective, because it would require law enforcement officers
to engage in the collection of sociological data. When you add to the
list of things that police officers have to do, you are necessarily
subtracting from the law enforcement mission. Police officers are
supposed to prevent crime and catch crooks, not collect data for
Federal studies.
How can we achieve a color-blind society if policies at the Federal
level require the detailed recording of race when it comes to something
as common as a traffic stop? Should the passenger's race be recorded?
Why not? Some traffic stops do result in the arrest of the passenger.
What about the officer's race? Should that be recorded so that officers
can be assigned to beats based on their ethnic background? And what if
the officer is unable to determine the driver's race? Will police
officers now be required to ask for ``Driver's license, registration
and proof of ethnicity, please?"
I submit to this Subcommittee that we do have a problem in our
nation today--the lack of trust and respect for our police officers.
Police officers also have a problem in that they have lost the trust,
respect and cooperation of the minority community. This is tragic
because it is minorities in our country that are most hurt by crime and
violence. This bill, however, is not the solution. It will make matters
worse, not better.
Let me give you another example of a bad idea. Prior to the media's
misuse of the term ``racial profiling,'' Jack Levin of Northeastern
University suggested a way to end racially-charged confrontations
between police and minority communities. He said, ``White police
officers should never knowingly confront black suspects'' (USA Today,
28 October 1996). This suggestion is ludicrous. Its very premise is
that individuals of different racial and ethnic backgrounds are simply
unable to interact with one another without violence.
I reject that premise, Mr. Chairman. All of us should. And I submit
that the premise of S. 989 is similarly flawed.
Racial tensions here in Washington, D.C. are not atypical of any
other urban area. The Washington D.C. Metropolitan Police Department is
sixty-seven percent (67%) black in a city where the black population is
only sixty percent (60%). Does this mean that sixty-seven percent (67%)
of the Metropolitan police officers should never confront white,
Hispanic or Asian suspects? How does this make our streets safer? How
is this good police work?
Legislation like S. 989 emphasizes racial differences. It will, in
fact, make police officers much more aware of race when our objective
should be to de-emphasize the race of the suspect. Consider this
scenario: A police officer stops four drivers, all of whom are black.
How is that officer to respond to allegations by the fifth driver--who
may be white, Asian or Latino--that they were only stopped to inoculate
the officer against charges of racism. Can a case be made that the
officer's decision is racially motivated? This is the exact opposite of
our intent.
This bill will actually increase the unfounded allegations of
racism when drivers and officers are of a different race. Racial
tensions will increase, not decrease, if this bill's measures are given
the force of law. Supreme Court Justice Antonin Scalia eloquently
reminded us, ``To pursue the concept of racial entitlement--even for
the most admirable and benign of purposes--is to reinforce and preserve
for future mischief the way of thinking that produced race slavery,
race privilege and race hatred. In the eyes of government, we are just
one race here. It is American.'' Instead of officers looking at someone
as a human being, this bill would require them to make racial and
cultural distinctions between the communities they serve because they
know their choices will be scrutinized from that perspective by
political leaders, police managers, and the Federal government.
A police officer who makes a stop or an arrest--no matter what that
officer's racial background--must balance the constitutional rights of
the suspect with their duty to guard the public safety and preserve the
peace. No one, however, seems to consider that the officer is as much a
citizen entitled to his or her rights as any suspect from any
allegation. Unlike most professions, many rank-and-file police officers
are not, particularly in employment and disciplinary matters,
guaranteed their constitutional due process protections in this
country. Too often, their rights are discounted. The United States
Congress has actively considered legislation similar to S. 989 for the
past six years. The last time that legislation protecting the due
process rights of police officers was ten years ago in 1991.
I do not know if, let alone how, we as a nation can solve the
problems of racism. But I do know what will and will not work in the
profession of law enforcement. There is a mistaken perception that the
ugliness of racism is part of the culture of law enforcement. It is
incumbent on all of us to correct that perception. This bill was
written with this mistaken perception in mind--and it reinforces it.
This legislation is not good public safety policy and will not result
in good policing. It will not help to rebuild the trust between law
enforcement and the minority community.
For these reasons, the Fraternal Order of Police strongly opposes
the bill and I urge this Subcommittee to reject it.
Mr. Chairman, I want to thank you for the opportunity to appear
before the Subcommittee today.
Chairman Feingold. Thank you, Mr. Young, for your
willingness to testify before the Subcommittee.
Our next witness is Mr. Raymond Kelly. Mr. Kelly is the
former Commissioner of the U.S. Customs Service, and also the
former Commissioner of the New York City Police Department.
Under this direction, as we have heard today, the Customs
Service has made great progress in addressing racial profiling.
Welcome. Thank you for being here and you may proceed.
STATEMENT OF RAYMOND W. KELLY, FORMER COMMISSIONER, UNITED
STATES CUSTOMS SERVICE, AND FORMER COMMISSIONER, NEW YORK CITY
POLICE DEPARTMENT, NEW YORK, NEW YORK
Mr. Kelly. Thank you, Mr. Chairman. I want to thank Senator
Durbin, though he is not here, for those generous remarks that
he made.
In my experience, there is no greater threat to the
credibility of law enforcement than racial profiling. Any
agency that ignores this threat or delays in taking precautions
against it risks not only its reputation, but the compact of
trust between government and the rest of society.
Today, I would like to talk to you about one agency's
approach to dealing with this issue, the United States Customs
Service. Before the beginning of my tenure there, Customs began
to receive allegations that its inspectors were using race in
deciding which passengers to search. These allegations were
very disturbing, to say the least. It was certainly not the
agency's policy, and in no way were we prepared to accept it as
our practice.
As you know, one of Customs' chief responsibilities is to
keep dangerous contraband from crossing U.S. borders. The fact
is most travelers entering our country are law-abiding, but
there exists a small percentage that are not. One of the
responsibilities of the Customs Service is to stop them from
smuggling narcotics and other dangerous contraband into the
country.
Customs searches an extremely small percentage of
travelers, about 1 every 9 among the approximately 80 million
commercial air passengers entering the U.S. each year. To
accomplish its mission, Customs has broad search authority, the
broadest of any law enforcement agency in the land. Inspectors
can stop, search and detain travelers based on reasonable
suspicion; that is, specific factors that may lead those
officers to believe someone would be carrying drugs or other
contraband.
Under no circumstances do these factors ever include a
person's race. So when complaints of racial profiling surfaced,
we moved quickly to review all aspects of our personal search
policy. Our preliminary review showed no specific incident of
bias, but we did find lapses in management and supervision that
contributed to incidents of improper conduct, poor judgment and
insensitivity to the rights of travelers.
Not satisfied with an internal assessment alone, we
immediately appointed an independent outside commission of
government and community leaders to conduct a study of Customs
personal search policies. Commission members were given
unfettered access to Customs data, facilities and personnel
across the country.
In the meantime, we began a number of immediate reforms.
First and foremost, we increased the role of supervisors in the
personal search process. Where in the past any individual
inspector could decide whether or not to make a personal
search, we ensured that a supervisor reviewed that decision.
Moreover, any decision to move someone to a facility for a
medical examination had to be approved by a port director, the
highest-ranking Customs official onsite.
We bolstered training for our employees. We mandated new
cultural interaction and personal search training for all our
inspectors, about 8,000 people. We also rewrote our personal
search policies, eliminating any phrase that could remotely be
construed as bias, and compiled them into a single handbook. We
increased legal oversight of the process. We made Customs
lawyers available 24 hours a day by phone to inspectors to
advise on the legal grounds for searches.
We implemented a new policy that requires Customs officers
to consult with the local U.S. Attorney's office for any
prolonged detentions. In the past, Customs could hold someone
indefinitely, without permitting contact with family or
friends. New notification rules allow anyone detained to inform
someone of his or her delay within 2 hours.
Recordkeeping, in general, was poor. Data collection on
personal searches was weak and inconsistent. We instituted
mandatory data collection on the race, gender, age and
citizenship of persons searched, as well as the reasons for the
search. We formed the national passenger data analysis unit at
headquarters to examine that data. I received updates every
morning on the searches that were conducted.
We made major investments in new, non-intrusive technology
and x-ray equipment. We undertook a major information campaign
with the traveling public, and we enhanced the role and
visibility of Customs passenger service representatives. We
developed a passenger rights brochure that explained the rights
of travelers and their obligations under U.S. law. We also
created a new customer satisfaction unit at headquarters to
handle complaints and other issues, and a national comment card
program through which travelers can submit their feedback to
Customs.
To sum up, improved supervision, better training, enhanced
legal oversight, better data collection, better technology,
better communication with the traveling public--these were the
pillars of our reforms.
While changes like these require time to take hold, we were
very encouraged by the results. Nationally, Customs was
searching far fewer people than it ever did before, while
increasing its overall level of seizures. Customs cut the
number of personal searches significantly, from just over
43,000 searches in 1998 to just over 9,000 in the year 2000.
Yet, the number of positive searches yielding drugs actually
increased dramatically. Those numbers showed us that we could
identify narcotics traffickers without trampling on the rights
of the law-abiding public.
In June 2000, the personal search commission issued its
report. They acknowledged, in their words, the series of ``bold
reforms'' Customs had taken. While the report did not find
specific evidence of bias, they did offer 20 recommendations to
further safeguard the rights of travelers, and those
recommendations are being implemented.
Having been involved in this issue for a long time, I know
one thing for certain. This is not a problem from which law
enforcement can simply walk away and declare victory. Policies
must be monitored constantly to ensure that changes become
embedded in the culture of the organization.
It is my hope that enforcement agencies will voluntarily
adopt policies that require the recording of stops and searches
of all citizens. Emerging technologies will make this process
less time-consuming and easier for management to monitor. It is
my view that such practices will not adversely impact on
effective law enforcement in any way. It is also my hope that
respected national law enforcement organizations, such as PERF,
will support such policies and publish documents outlining best
practices regarding the carrying out of stop and frisk
procedures.
However, if Federal and State agencies lag in the adoption
of these policies, then legislation will be required. There is
simply no place for racial profiling in American law
enforcement, not in the Customs Service or anywhere else.
Thank you.
[The prepared statement of Mr. Kelly follows:]
Statement of Raymond W. Kelly, former Commissioner, United States
Customs Service, and former Commissioner, New York City Police
Department, New York, New York
Senator Feingold, members of the sub-committee, thank you for your
invitation to testify today. In my experience, there is no greater
threat to the credibility of law enforcement than racial profiling. Any
agency that ignores this threat, or delays in taking precautions
against it, risks not just the reputation of the organization in
question. . .but the very compact of trust and fairness between
government and the people upon which civil society rests.
Today I'd like to talk to you about one agency's approach to
dealing with this issue. The U.S. Customs Service, where I served as
Commissioner from August 1998 through January 2001. Before the
beginning of my tenure, Customs began to receive allegations from
certain members of the traveling public that, in specific incidents,
agency personnel had selected commercial air passengers for physical
searches based on race. These allegations were very disturbing, to say
the least. It was certainly not agency policy to use such tactics in
our enforcement mission. In no way were we prepared to accept it as
part of our practice. As you know, one of Customs' chief
responsibilities is to keep dangerous contraband from crossing U.S.
borders. The fact is, the great majority of travelers entering our
country are law-abiding. But there exists a small percentage who are
not, and who contribute to the illegal drug menace by smuggling
narcotics. It's the difficult job of the Customs service to stop these
individuals. The job is even more difficult when it comes to stopping
those who conceal drugs on or in their bodies, particularly those
arriving by commercial air.
To put this in the proper perspective, Customs searches an
extremely small amount of the approximately eighty million commercial
air passengers entering the U.S. each year. Today, that figure is about
one out of every nine thousand travelers who arrive.
To accomplish this difficult aspect of its mission, Customs has
been granted very broad search authorities the broadest of any law
enforcement agency in the land. Inspectors can stop, search, and detain
travelers based on reasonable suspicion-that is, based on specific
factors that may lead those officers to believe someone may be carrying
drugs. Those criteria are clearly outlined in the intensive training
provided to Customs personnel. Under no circumstances, whatsoever, do
these factors ever include a person's race. When complaints of racial
profiling surfaced, we moved quickly to review all aspects of our
personal search policy. Our preliminary reviews showed no specific
incidents of bias. But we did find lapses in management and supervision
that contributed to instances of improper conduct, poor judgment, and
insensitivity to the rights of travelers. Not satisfied with an
internal assessment alone, we immediately appointed an independent,
outside commission of government and community leaders to conduct a
study of Customs personal search practices in April of 1999.
Commission members were given unfettered access to Customs
facilities and personnel across the country. They were also provided
with whatever statistics and information they needed to compile their
reports. In the meantime, we began a number of immediate reforms. First
and foremost, we increased the role of supervisors in the personal
search process. Where, in the past, any individual inspector could
decide whether or not to make a personal search, we ensured that a
supervisor subsequently approve that decision. Moreover, any decision
to move someone to a facility for a medical examination had to be
approved by a port director, the highest-ranking customs official on
site.
We bolstered training for our employees. We mandated new cultural
interaction and personal search training for all our inspectors. .
.that's about eight thousand people. We also rewrote our personal
search policies, eliminating any phrase that could remotely be
construed as bias, and compiled them in a single handbook. We increased
legal oversight of the process. We made Customs lawyers available
twenty-four hours a day by phone to inspectors to advise on the legal
grounds for searches. We implemented a new policy that requires Customs
officers to consult with the local U.S. Attorney's office for any
prolonged detentions. In the past, Customs could hold someone
indefinitely without permitting contact with friends or family. New
notification rules allow anyone detained to inform someone of his or
her delay within two hours.
Record keeping, in general, was poor. Data collection on personal
searches was weak and inconsistent. We instituted mandatory data
collection on the race, gender, age and citizenship of persons
searched, as well as the reasons for the search. We formed a national
passenger data analysis unit at headquarters to examine that data. I
received updates every morning on the searches we conducted.
We made major investments in new, non-intrusive technology and x-
ray equipment. These included the purchase of body scan machines and
mobile x-ray equipment that minimize the need for physical contact and
time-consuming trips to the hospital. That technology was deployed at
major international airports across the country .We undertook a major
information campaign with the traveling public. That campaign began
with an outside consultant's review of our passenger processing areas.
Based on the consultant's findings, we implemented a series of changes
including better signage. Enhancing the role and visibility of Customs'
passenger service representatives. And designing new declaration forms
to eliminate confusion for travelers. We also put out new brochures
that explain why Customs performs inspections and searches. These
include a document entitled ``Why Did This Happen to Me?'' which
explains the personal search porcess to those who are referred for a
secondary inspection. We also developed a passenger rights brochure
that explains the rights of travelers and their obligations under U.S.
laws. We created a new customer satisfaction unit at headquarters to
handle complaints and other issues. And a national comment card
program, through which travelers can submit their feedback to Customs.
To sum up. . .Improved supervision. . .Better training. . .Enhanced
legal oversight. . .Better data collection. . .Better technology. .
.Better communication with the traveling public. . .These were the
pillars of our reforms.
While changes like these require time to take hold, we were very
encouraged by the early results. Nationally, Customs was searching far
fewer people than it ever did before, while maintaining its overall
level of seizures.
Customs cut the number of personal searches significantly-from just
over 43, 000 thousand searches in 1998 to just over nine thousand in
the year 2000. Yet, the number of positive searches yielding drugs
actually increased dramatically. Those numbers showed us that we could
engage the narcotics traffickers vigorously, without allowing the
rights of the law-abiding public to become casualties in the counter-
drug fight. In addition, our comment card program indicated that our
changes were being well received by the public. We mandated that
officers give anyone who goes through a secondary inspection a comment
card. They were also made available to any traveler passing through our
processing areas. As of the close of 2000, we received well over 15,000
cards. Eighty percent complimented Customs and the work of our
inspectors. I understand that rate has held steady through today.
In June 2000, the personal search commission and the independent
advisor issued their reports. They acknowledged, in their words, the
series of ``bold reforms'' Customs had taken. While neither report
found specific evidence of bias they did state that more precautions
could be taken, and offered twenty recommendations to further safeguard
the rights of travelers. We assembled a special, high level internal
committee of customs managers to assess, implement, and monitor those
findings. Having been involved with this issue for a long time I know
one thing for certain. This is not a problem from which law enforcement
can simply walk away and declare victory. Policies must be monitored
constantly to ensure that changes become embedded in the culture of the
organization.
It is my hope that enforcement agencies will voluntarily adopt
policies that require the recording of stops and searches of all
citizens. Emerging technologies will make this process less time
consuming and easier for management to monitor. It is my view that such
practices will not adversely impact on the effective law enforcement in
any way. It is also my hope that respected national law enforcement
organizations, such as PERF, will support such policies and publish
documents outlining best practices regarding the carrying out of stop
and frisk procedures. However, if federal and state agencies lag in the
adoption of these policies, then legislation will be required. There is
simply no place for racial profiling in American law enforcement. Not
in the Customs Service or anywhere else.
Thank you again, Mr. Chairman, for this opportunity to testify.
Chairman Feingold. Thank you, Mr. Kelly, for your testimony
and for your longstanding dedication to solving this problem.
Now, I would like to welcome Chief Reuben Greenberg, the
Chief of Police of Charleston, South Carolina. He has been the
Chief in Charleston since 1982. Chief Greenberg has extensive
law enforcement experience, having served in law enforcement
agencies in Florida, Georgia, Alabama and California.
Chief, it is an honor to have you appear before this
Subcommittee. Thank you for coming and you may proceed.
STATEMENT OF REUBEN M. GREENBERG, CHIEF OF POLICE, CHARLESTON
POLICE DEPARTMENT, CHARLESTON, SOUTH CAROLINA
Mr. Greenberg. Thank you, sir, and thank you for providing
me with the opportunity to make a presentation this morning.
I am certainly confident that if the average law
enforcement officer in this country had the opportunity to be
here this morning and hear some of the comments that have been
made regarding racial profiling, the vast majority, almost all
of them, would agree with you that racial profiling is wrong.
You don't have to be a lawyer to know that it is probably
unconstitutional, it is unjust, it is un-American, and it
violates the Equal Protection Clause of our Constitution. They
could easily, as I do, agree with you on that.
The difficulty is that racial profiling, while it is a
demonstrated problem in 1 or 2 or 3 or 4 or 5 or 10 or 50 law
enforcement agencies in our country, it is a very, very small
problem. We have almost 18,000 different law enforcement
agencies in the United States, and to demonstrate that 3 or 4
or 10 or 50, as I say, of those agencies are outside the line
does not mean that law enforcement is a profession that harbors
persons who have racist views.
I would like to congratulate, as people have here this
morning, Commissioner Kelly on the many initiatives that he has
made regarding this issue, but this is not the only issue which
he has developed successful resolutions for. He has served in
other positions, as has been noted, and he has developed
various types of techniques to resolve other law enforcement-
related problems as well.
But there are a great many Commissioner Kellys out there;
he is not the only one. The National Organization of Black Law
Enforcement Executives is just one agency in which many such
persons exist. The International Association of Chiefs of
Police, the Police Executive Research Forum--all of these
agencies are made up of members who have the same types of
orientations and the same types of abilities that Commissioner
Kelly has.
The difficulty that we see with a Federal approach to this
particular alleged problem of racial profiling is that under
the Federal initiatives, it generally has the same thing for
all; that is, the same fix for all problems, both great and
small, all across the country. We do not all need to have the
same remedy.
As Commissioner Kelly was able to act very affirmatively
without being demanded to do so or required to do so by law,
but simply because it was right to do so, he came up with some
very interesting and practical and self-initiated procedures in
order to reduce what may have been a serious problem in his
particular former agency.
It is interesting that the topic of racial profiling is
debated and discussed as much as it is, when we are unable to
define it or measure it or even to recognize where it is or
where it is not. The racial profiling debate is really, in the
main, a special debate regarding the enforcement of laws
against narcotics. Those persons who are in favor of legalizing
or decriminalizing narcotics or other prohibited drugs have
directed their opposition to enforcement of these laws by
attempting to argue that the enforcement amounts to a
declaration of war against certain minorities.
The prize that they truly seek in many cases is not relief
for some alleged form of unconstitutional police action against
minorities, but more directly they seek to inculcate a
procedure so cumbersome and unwieldy that there cannot exist
any meaningful and practical enforcement of laws against drug
trafficking, distribution and possession. The fact that some
drug trafficking and distribution is engaged in by some members
of certain racial or ethnic groups is being utilized to blunt
or even discourage drug enforcement in general.
We have a number of problems in law enforcement, but I
don't believe that racial profiling is one of them. As
indicated earlier, it is a very, very small problem in a few
places that exists. It is not something that permeates all of
law enforcement.
I believe that the people who argue that a disproportionate
number of persons from various ethnic groups are convicted of
various crimes and sentenced to jail derive from alleged
unconstitutional contact that law enforcement personnel have
with these groups--I don't believe that is the case. They
prefer to ignore the factual data that indicate that these
groups have a disproportionate contact with perpetrators of
certain crimes also because these groups are also greatly
disproportionate numbers of crime victims as well.
For example, while many diagnosticians of racial profiling
are anxious to tell you the various percentages of racial
minorities who travel a given stretch of highway, they are
oblivious to the astronomically high rates of victimization
endured by certain racial minorities. For example, as has been
pointed out here, African-Americans are 12 percent of the
national population, nonetheless 54 percent of annual homicide
victims and 44 percent of sexual assault victims. These things
need to be addressed as well, and I truly wish that there was
some Federal legislation that could be oriented toward reducing
the incidence of victimization that African-Americans and other
minorities suffer in our country.
Thank you very much.
[The prepared statement of Mr. Greenberg follows:]
Statement of Reuben M. Greenberg, Chief, Police Department, Charleston,
South Carolina
Racial Profiling
It is interesting that the topic of racial profiling is debated and
discussed as much as it is when we are unable to define it or measure
it or even to recognize where it is or is not. The racial profiling
debate is really in the main a special debate regarding the enforcement
of the laws against narcotics. Those persons who are in favor of
legalizing or decriminalizing narcotics and other prohibited drugs have
directed their opposition to enforcement of these laws by attempting to
argue that the enforcement amounts to a declaration of war against
certain minorities. The prize they truly seek is not relief of some
alleged form of unconstitutional police action against minorities but
more directly they seek to inculcate a procedure so cumbersome and
unwieldy that there can not exist any meaningful and practical
enforcement of laws against drug trafficking distribution and
possession.
The fact that some drug trafficking and distribution is engaged in-
by some members of certain racial and ethnic groups is being utilized
to blunt or discourage drug enforcement in general.
Some persons even argue that the disproportionate number of persons
from these ethnic groups that are convicted of various crimes and
sentenced to jail derive from the alleged unconstitutional contact the
law enforcement personnel have with these groups. They prefer to ignore
the factual data that indicates that these groups have a
disproportionate contact as perpetrators of certain crime is because
these groups are also greatly disproportionate numbers of crime
victims. For example, while many diagnosticians of racial profiling are
anxious to tell you the various percentages of racial minorities who
travel a given stretch of highway, they are oblivious to the
astronomically high rates of victimization endured by certain racial
minorities. African Americans 12% of the national population--54% of
annual homicide victims--44% sexual assault victim, etc.
It seems to me that there will or should rightfully be a
disproportionate number of minorities being contacted by the police as
long as a disproportionate number of minorities suffer as victims of
general crime. Most police contact is initiated by a complaint or a
request for police action made by a concerned citizen or victim. Police
officers are not driving around looking for minorities to stop or
investigate for the sake of harassment. They do attempt to enforce the
law or deter crime and provide for community safety by taking
reasonable and responsible actions to do so. To thwart this law
enforcement effort in the interests of promoting some selfish,
unnecessary, unhealthy, hedonistic and dangerous goal is unwarranted
and wrong. These persons cannot be permitted to use such unethical
means to reverse legitimate court decisions and their outcomes.
Chairman Feingold. Thank you, Chief, for your testimony.
Our next witness is Ronald L. Davis, a captain in the
Oakland Police Department and the Region VI Vice President of
the National Organization of Black Law Enforcement Executives,
known as NOBLE. He is the primary author of NOBLE's report
entitled ``A NOBLE Perspective: Racial Profiling: A Symptom of
Bias-Based Policing.''
Captain Davis, we appreciate your being here.
STATEMENT OF RONALD L. DAVIS, CAPTAIN, OAKLAND POLICE
DEPARTMENT, AND REGION VICE PRESIDENT, NATIONAL ORGANIZATION OF
BLACK LAW ENFORCEMENT EXECUTIVES, OAKLAND, CALIFORNIA
Mr. Davis. Thank you, sir. Chairman Feingold and
distinguished Committee members, let me begin with a brief
history of NOBLE. NOBLE was formed in 1976 and we are currently
celebrating our 25th anniversary here in the Nation's Capital,
so you all are invited to join us tonight for our celebration.
NOBLE has grown from 60 founding members to an organization
that now represents over 9,000 law enforcement executives,
commanders and criminal justice professionals in over 50
chapters across the country. Like most things that are noble,
they have started from humble beginnings.
The basic mission of NOBLE is to ensure equity in the
administration of justice and serve as the conscience of law
enforcement. NOBLE has issued its report on racial profiling
which outlines our position and makes recommendations to local,
State and Federal legislators and the United States Attorney
General. Copies of the report have been provided.
NOBLE has also developed what is considered by many as the
most effective racial profiling training in the country. From
the onset, NOBLE has been active in addressing the issue of
racial profiling and bias-based policing. There is no other
organization in this country that has such a unique
perspective.
First, as African-American persons, we have been victims of
racial profiling. Second, as police practitioners, we have been
guilty of racial profiling. And, third, as police executives we
are responsible to end racial profiling.
In 1999, NOBLE adopted a resolution supporting the Traffic
Stop Statistics Act, introduced by Congressman Conyers. In
2001, at the first day of our national conference, NOBLE
adopted a joint resolution with the Alliance of National
Minority Law Enforcement Organizations supporting the End
Racial Profiling Act of 2001. The Alliance represents every
major minority law enforcement organization in this country. It
is NOBLE, it is the National Black Police Association, the
Hispanic American Police Command Association, the National
Latino Police Officers' Association, the Asian American Command
Officer Association, the Asian Police Officers' Association,
and the Native American Police Officers' Association. As you
can see, the Alliance does represent minority law enforcement.
Our position is very simple. Racial profiling does, in
fact, occur. We must first accept that racial profiling is not
the sole problem or the root cause of the problem; it is a
symptom of a much larger problem, which is bias. It is bias in
our criminal justice system, it is bias in our society, and it
is bias in policing, or as we call it, bias-based policing.
It took data collection to convince America that racial
profiling exists. I say America because make no mistake, as we
see today, not all Americans agree that it does exist. A recent
survey from my esteemed colleagues at the Police Executive
Research Forum revealed that many police chiefs, minorities and
non-minorities, believe racial profiling does not exist, and if
it does, it is aberrant behavior or limited to a few bad
apples.
This survey explains why we need effective racial profiling
legislation. Police administrators will not fix the problem if
they cannot recognize there is a problem or have the tools to
identify to what extent a problem is that exists. Many chiefs
and police organizations believe the decision to collect stop
data should be that of the local chief or his or her community.
I have a question for that theory. What if it is one of the
chiefs who answered the survey that it doesn't exist? I think
we can probably answer whether or not he or she will collect
the data. How does a chief decide whether or not the community
wants data collection? Is it by majority vote, majority of the
minority, or majority of a select group? What does this process
look like? The idea sounds great in theory. However, in
practicality, it will result in minority voices being silenced
by the majority will.
For our highways to be truly freeways, we must ensure
racial profiling ends in every city and by every officer in
this country. It is the basis purpose of the Federal Government
to protect and defend the Constitution of the United States.
It was offered this morning that it is the job of the
police to prevent crime and arrest bad guys. It is not. The
basic oath of office is to protect and defend the Constitution
of the United States. We will never compromise civil liberties
for safe streets.
Racial profiling legislation is needed to ensure that there
is meaning or definition to racial profiling. We have to
standardize the definition; it must mean the same thing,
whether you are driving on a Maryland interstate or a
California highway. A police officer must understand the impact
and effect of bias-based policing to his or her community,
whether in Oakland or Washington, D.C.
Racial profiling legislation is needed to ensure police
agencies operate within the guidelines of the Constitution,
never sacrificing civil liberties for safe streets. It was also
mentioned that if every police management operated as our
esteemed colleague, Commissioner Kelly, we would not be here
today. I must agree, but unfortunately we do not all operate
the same way as Commissioner Kelly and the American people
should not suffer for it.
Racial profiling legislation is needed to hold law
enforcement organizations and officers accountable. As a law
enforcement manager, I cannot manage what I do not measure.
Data collection is not the sole answer. We are not offering it
as that. Data collection in most cases probably will not
determine whether racial profiling exists in an agency. It
will, however, identify the levels of bias in police
operations.
Moreover, it is critical in determining the effectiveness
of programs and policies. If we make the reform that is
necessary, how do we measure our successes? In management, one
of the key factors of any program that we try is to measure our
effectiveness. We know this from the statistics.
Racial profiling is not effective. Of the majority of stops
in this country, about 3 to 6 percent lead to arrests, and the
majority of those arrests are traffic-related offenses. So as
we take a look at our murder rate and as we take a look at our
crime rate, we are not catching the suspects or the
perpetrators through car stops or through the stops that we are
doing. Our success rates show that focusing on race or using
race to any degree to determine stops, other than suspect
description, is ineffective.
As a law enforcement manager, I cannot establish an
organizational tone or culture of accountability without sound
policies and relentless enforcement of those policies. But
those policies must be at the local, State and Federal level.
It took legislation in this country to permit racial profiling
discrimination to exist. It will take legislation to make it
end.
In closing, NOBLE has recommended to the Attorney General
to form a national task force on racial profiling to ensure
proper enforcement and enactment of the legislation. The task
force would assist the Attorney General in identifying what
data should be collected, help establish benchmarks, and
develop comprehensive training programs and mediation services.
It is truly an honor for me here today to provide you my
testimony and I am very grateful.
Thank you, sir.
[The prepared statement of Mr. Davis follows:]
Statement of Ronald L. Davis, Captain, Oakland Police Department, and
Region VI Vice President, National Organization of Black Law
Enforcement Executives, Oakland, California
Introduction
Good Morning: Chairman Feingold and distinguished committee
members. I am Captain Ronald Davis of the Oakland Police Department and
Region Vice President of the National Organization of Black Law
Enforcement Executives (NOBLE).
History of NOBLE
Let me begin with a brief history of NOBLE. NOBLE was formed in
1976, and we are currently celebrating our 25th anniversary in the
nation's capitol. If you get a chance, please stop by our 25th
anniversary celebration tonight at the Mariott Wardman Park Hotel. Your
presence will truly make it a memorable event.
NOBLE has grown from 60 founding members to an organization that
now represents approximately 9,000 law enforcement executives,
commanders and criminal justice professionals in over 50 chapters
across the country. Like most things that are NOBLE, they start from
humble beginnings.
The basic mission of NOBLE is to ensure equity in the
administration of justice and serve as the conscience of law
enforcement by addressing critical issues germane to improving both the
law enforcement profession and its service to our communities.
NOBLE is a member of the Community Policing Consortium and provides
human diversity and community partnership training to law enforcement
officers and community members across the nation.
NOBLE has issued its report on racial profiling which outlines our
position, and makes recommendations to local, state and federal
legislators and the Attorney General. NOBLE has also developed what is
considered by many as the most effective racial profiling training in
the country.
From the onset, NOBLE has been active in addressing the issues of
racial profiling and bias-based policing. There is no other
organization with such a unique perspective.
1. As African-Americans we have been victims of racial
profiling;
2. As police officers (practitioners) we have been guilty of
racial profiling;
3. As executives we are responsible to lead the fight to end
racial profiling.
In 1999, NOBLE adopted a resolution supporting the Traffic Stop
Statistic Act introduced by Congressman John Conyers. In 2001, NOBLE
adopted a joint resolution with the Alliance of National Minority Law
Enforcement Organizations supporting the ``End Racial Profiling Act of
2001.''
The Alliance represents the following organizations: The National
Organization of Black Law Enforcement Executives (NOBLE), National
Black Police Association (NBPA), the Hispanic American Police Command
Association (HAPCOA), the National Latino Police Officers' Association
(NLPOA), the Asian American Command Officer Association (AACOA), the
Asian Police Officers' Association (APOA) and the Native American
Police Officers' Association (NAPOA).
As you can see, the Alliance represents minority law enforcement in
this country. Our position is simple. Racial profiling does in fact
occur. We must first accept that racial profiling is not the sole
problem or root cause of the problem - it is a symptom of a much larger
problem which is bias. Bias in the criminal justice system, bias in our
society and bias in policing or as we call it bias-based policing.
NOBLE's definition of bias-based policing is:
The act (intentional or unintentional) of applying or
incorporating personal, societal or organizational biases and/
or stereotypes as the basis or factors considered, in decision-
making, police actions, or the administration of justice.
The debate is over - racial profiling exists and as President Bush
has stated, ``...we must end it.'' This national acknowledgement came
about as a result of data-collection. This was not always the case. Two
years ago, many people and organizations believed racial profiling was
only a perception in the minority community. Today, their perceptions
have changed.
Many of the same people and organizations now believe racial
profiling legislation is not necessary because - ``we know we have a
problem.'' I'm sure in two years this view will too change.
It took data collection to convince America that racial profiling
exists. I say America, but make no mistake this does not mean all
Americans. There are still many that believe racial profiling does not
exist.
A recent survey by the Police Executive Research Forum (PERF)
revealed that many police chiefs (minorities and non-minorities)
believe racial profiling does not exist, or is aberrant behavior
limited to a few ``bad apples.''
NOBLE recognizes that there are a few bad apples in every
profession. We also recognize, and want our great nation to recognize,
that our law enforcement officers are ``NOBLE'' men and women who want
to provide service to our communities.
Focusing solely on a ``few'' bad apples is not only a disservice to
these fine men and women in blue, it is a disservice to the communities
they serve. This is a sy9temic problem - it is the root of the tree
that is bad.
This explains why we need effective racial profiling legislation.
Police administrators will not fix the problem, if they cannot
recognize there is a problem or have the tools to identify to what
extent a problem is that exists. Many chiefs and police organizations
believe the decision to collect stopdata should be that of the local
chief and his or her community.
Question: What if it is a chief who answered the survey that racial
profiling didn't exist? We can probably guess whether he or she will
collect data. How does a chief decide whether the local community wants
data collection? Is it by majority vote, majority of the minority,
majority of a select group? What does this process look like? This idea
sounds great in theory, however, in practicality it will result in the
minority voice being silenced by the majority will.
Even if a community (minority and non-minority) agrees data
collection is not necessary, we must remember there are no cities with
restricted access. I must have the ability to drive through any city in
this country, not just those who recognize the problem.
For our highways to be truly ``freeways'' we must ensure racial
profiling ends in every city and by every officer in this country. It
is the basic purpose of the federal government to protect and defend
the constitution of the United States. This responsibility cannot and
must not be relegated to local law enforcement or the will of local
communities.
Racial profiling legislation is needed to ensure the meaning or
definition of racial profiling is standardized - it must mean the same;
whether you are driving on the Maryland Interstate or the California
highway. A police officer must understand the effect of bias-based
policing to his or her community, whether in Oakland, California or
Washington, DC.
Racial profiling legislation is needed to ensure police agencies
operate within the guidelines of the constitution, never sacrificing
civil liberties for safe streets. We can and must do both.
Racial profiling legislation is needed to hold law enforcement
organizations and officers accountable. This is not federalism; this is
your responsibility.
As a law enforcement manager ``I can not manage what I do not
measure.'' Data collection is not the sole answer or panacea. Data
collection in most cases will not determine whether an agency is
engaging in widespread racial profiling.
Data collection, however, is necessary to identify levels of bias
in police operations. Moreover, it is critical in determining the
effectiveness of programs and policies. We must establish benchmarks to
measure the effectiveness of our reform efforts.
As a law enforcement manager, I can not establish an organizational
tone or culture of accountability without sound policies and relentless
enforcement at local and federal levels - of those policies. It took
legislation to permit racial profiling and discrimination - it will
take legislation to end it.
In closing, NOBLE recommends the Attorney General form a National
Task Force on Racial Profiling to ensure proper enforcement of the
legislation.
The task force would assist the Attorney General in identifying
what data should be collected, establish credible benchmarks, develop
comprehensive training programs and create mediation and facilitation
programs for a ``cities in crisis'' with racial tension. Mediation
services on the front-end prevent investigations on the back-end.
It is truly an honor for me and NOBLE to provide our input. We are
grateful that this committee's action is consistent with the NOBLE
motto:
"Justice by Action"
I have provided each member of this committee a copy of the NOBLE
Report on Racial Profiling and a copy of the Alliance joint resolution.
Chairman Feingold. Thank you, Captain, for your testimony,
for your support and the support of your organization.
Next to testify will be Dr. Lorie Fridell. Dr. Fridell is
the Director of Research at the Police Executive Research
Forum, a consortium of progressive police organizations. Prior
to joining PERF in 1999, she was an associate professor of
criminology and criminal justice at Florida State University.
PERF is a highly respected organization.
Dr. Fridell, we are pleased that you could come today.
Please go ahead.
STATEMENT OF LORIE FRIDELL, RESEARCH DIRECTOR, POLICE EXECUTIVE
RESEARCH FORUM, WASHINGTON, D.C.
Ms. Fridell. Thank you, Mr. Chairman, and thank you,
Senator Sessions. I appreciate the opportunity to appear before
you today.
As you said, I am representing the Police Executive
Research Forum, which is a non-partisan national membership
organization of police executives who serve over half of our
Nation's population. A major aspect of PERF's service to the
profession is social science research and I am the Director of
Research.
We believe that the vast majority of police in this country
are dedicated men and women who are committed to treating all
citizens fairly and with dignity. Just 2 weeks ago, PERF
released a 160-page report to provide guidance to these men and
women and the citizens they serve on how they can respond to
racially biased policing and the perceptions of racially biased
policing.
This guidance is based on surveys returned by more than
1,000 police executives, materials sent to us by more than 250
agencies, existing reports and literature, focus groups with
citizens and police from around the Nation, input from subject
matter experts, and input from an advisory board, including a
representative from NOBLE, as well as representatives from
minority advocacy groups and civil rights groups and academia.
So much of what we gained during the course of that report has
helped us to understand what Senate bill 989 would mean for
both police and citizens.
I am going to highlight several major points from my
written testimony. First, I will discuss our support for the
best practices grants and how that is, in fact, the appropriate
role of the Federal Government to address this important
problem.
Second, I will share our concerns regarding the provision
that allows the results of data collection to serve as prima
facie evidence in court of racially biased policing on the part
of agencies. My concerns relate to what appear to be overly
high expectations regarding the ability of these data to
identify racial profiling.
Third, I will share our concerns about the provision that
jeopardizes funding for communities in need by linking those
funds to new eligibility requirements.
First of all, Title III, Section 302, provides for the best
practices development grants. These are going to support
agencies in their efforts to respond to racially biased
policing. The PERF report advocates that executives sit down
with their citizens and discuss the problem and decide what are
the appropriate remedies tailored for the jurisdiction.
In our report, we provide over 50 recommendations for these
police-citizen partnerships to implement. We strongly support
Section 302, which would provide communities with the resources
to implement these, so long as it doesn't drain other important
current law enforcement funding. We are also pleased to see
that many of the activities listed in that provision reflect
the recommendations in the PERF report. Again, this provision
does represent an appropriate role of the Federal Government.
We are very concerned, however, with Title I, Section 102,
regarding the enforcement of the racial profiling prohibition.
Specifically, we are very concerned that this provision
provides that department data that show law enforcement
activities ``have had a disparate impact on racial or ethnic
minorities shall constitute prima facie evidence of a violation
of this title.''
We are concerned because we believe this indicates
expectations for law enforcement data that exceeds their
capabilities. Indeed, during the course of our 18-month
project, we witnessed overly high expectations for what this
law enforcement data can tell us. In fact, it appears that
policymakers, citizens, and even executives came to think that
if they cared at all about racially biased policing that they
had to collect special data. Other important response areas
were not given equal emphasis; these other areas include, for
instance, academy and in-service training, restrictive policies
on the use of race and ethnicity to make law enforcement
decisions, recruitment of diverse personnel, first-line
supervision, and outreach to minority communities.
While data collection can, in fact, be one viable response
by agencies to the problem of racially biased policing,
policymakers need to understand, first of all, the limitations
of those data--what they can and cannot tell us. And, second of
all, they need to understand how to use those data responsibly
in light of their limitations.
First, with regard to the limitations of the data, social
science is not capable of providing us with an answer for every
question that we pose. Thus, while all of us would very much
like to have data collection systems that can tell us what is
going on in the heads of our officers every time they make a
stop or initiate a search, we cannot do this.
The problem is that while we can collect data and, with the
help of some benchmarks show the disparity, we cannot to a
reasonable degree of certainty explain that disparity. That is,
while an agency can produce reasonably valid data to answer the
question, ``what percent of the people we stop for traffic
violations are Hispanic,'' the question we can't answer well
is, ``what percentage proves racial profiling? ''
Agencies are using benchmarks: census, driver's license,
UCR and observational data to try to figure out what these
percentages should be. But all of these have great limitations
because, in effect, what we are trying to do with this
benchmarking and this data is prove a causal linkage between
race and police behavior, when we cannot possibly account for
all of the variables besides race that could have impacted on
that behavior. These variables would include, but are certainly
not limited to, amount of driving, driving violations, vehicle
condition, and enforcement activity.
Again, there is nothing wrong with data collection so long
as the people collecting it understand what the data can and
cannot do, and that the results are used responsibly. What does
it mean to use them responsibly? Using them responsibly means
realizing that these are not proof of wrongdoing on the part of
either officers or agencies.
In the legal system, we link the seriousness of our
response to the level of proof or the confidence that we have
in our evidence. For example, we would not arrest someone
solely on the basis of hearsay evidence alone. Similarly, we
shouldn't bring an agency into court based on data collection
efforts that show disparity alone. The consequence is too great
vis-a-vis the confidence that we can have in this evidence.
This bill would allow agencies to be pulled into court
based on a low level of proof and then require the agency to
prove a negative--prove that they are not engaging in racially
biased policing, thus using resources for the legal defense
that should be used to protect and serve our communities.
Very briefly, Title III, Section 301, restricts eligibility
for specified grant programs. We do not support Section 301
because it jeopardizes existing funds that provide important
resources to communities in need. For instance, LLEBG funds are
being spent to enhance domestic violence efforts, reduce gang
crime, enhance security in and around schools, and provide
recreational activities and job training for at-risk youth. The
harm of this provision will be to the citizens of those high-
risk neighborhoods.
In closing, I appreciate the opportunity to speak with you.
As indicated by our recently released report, PERF takes
racially biased policing very seriously and we are working to
help agencies respond effectively. We support the bill's
sponsors in wanting to address racially biased policing and
hope that we can work with Members and staff on this and other
important law enforcement issues.
Thank you.
[The prepared statement of Ms. Fridell follows:]
Statement of Lorie Fridell, Ph.D., Research Director, Police Executive
Research Forum, Washington, D.C.
Mr. Chairman and Members of the Committee, I thank you for the
opportunity
to appear before you today. I am representing the Police Executive
Research Forum (PERF), which is a nonpartisan, national membership
organization of police executives who serve more than half the nation's
population. A major aspect of PERF's service to the profession is the
social science research that we conduct on various law enforcement
topics. I am the director of research at PERF and have worked closely
with our members and others engaged in addressing racial profiling.
PERF's members are dedicated to addressing racially biased policing
in all of its forms and they join the vast majority of police officers
in this country who are dedicated, principled men and women committed
to treating all citizens fairly and with dignity as we work to prevent,
identify and eradicate racially biased policing.
PERF recently released a 160-page report on racially biased
policing. (This report is available in its entirety on our website at
www.policeforum.org.) It provides nearly 50 recommendations that are
based on information culled from surveys returned by more than 1,000
law enforcement executives, materials from more than 250 police
agencies, focus groups with citizens and police, a literature review,
subject matter experts, national conference discussions, and advisory
group input. The advisory group for this project was composed of a
diverse group of law enforcement practitioners, community activists,
civil rights leaders and academics. Much of the information we gained
during this study has helped us better understand what S. 989 would
mean for police and citizens.
Some General Principles
To put my remarks in context, I would like to mention a few
principles that
guide PERF's work in this area. First, we know that racially biased
policing must be treated as a human rights issue. It has always been
unconstitutional and there are remedies, such as civil litigation under
section 1983 and U.S. Civil Rights investigations by the Department of
Justice, and these should not be forgotten. We know that racial
profiling has had devastating effects on citizens. It is a problem that
should be addressed by police working in concert with community
leaders, civil rights activists and other stakeholders toward a climate
of mutual trust and respect.
Second, we know it is important to address the corrosive impact of
both perceived and actual racial bias by police and that the concerns
of both law enforcement and citizens go well beyond the standard, very
narrow, definition of ``racial profiling.'' We use the term ``racially
biased policing'' rather than ``racial profiling'' because racial
profiling has frequently been defined so restrictively that it does not
capture the concerns of both police practitioners and citizens. The
most common definition of ``racial profiling'' refers only to law
enforcement activities (particularly vehicle stops) based solely on
race. According to the PERF report, ``racially biased policing'' occurs
when law enforcement inappropriately considers race or ethnicity in
deciding with whom and how to intervene in an enforcement capacity.
Compared with this definition, ``racial profiling'' targets a much
narrower range of activity. These contrasting, but unspoken,
definitions lead to confusion when assessing police or citizen
perceptions of the problem and need to be clarified in any discussion
about the range of activities of concern to police and the public.
The PERF report suggests that executives conceive of
``interventions'' broadly and consider the following areas in
addressing racially biased policing:
1. accountability and supervision;
2. policies prohibiting biased policing;
3. recruitment and hiring;
4. education and training;
5. minority community outreach; and
6. data collection and analysis.
One of our concerns with S. 989 is its overemphasis on data
collection as a remedy for this problem-reflecting the overly high
expectations nationally for these efforts. We found during the course
of our work that there is a widespread misunderstanding on the part of
policy makers, agency executives and citizens of what data collection-
that is, agencies' collection of race/ethnicity and other data on
engagements with citizens-can and cannot do. After characterizing the
constraints associated with data collection, I will link those concerns
to several specific provisions in the bill.
The Limitations of Data Collection Efforts
In PERF's report, we caution against high expectations regarding
the extent to which data can produce valid answers to the serious and
legitimate questions an agency seeks to answer. Data collection can be
a very positive agency response that can reflect the police executive's
commitment to both the community and agency personnel that biased
policing will not be tolerated. It can be used as a first step in
internal assessments of particular enforcement tactics or individual
officer performance when used responsibly. It can be problematic,
however, if policy makers, including police executives, look to data
collection efforts to provide a reliable and valid assessment of the
nature and extent of racial profiling.
Social science is not capable of providing valid answers to every
question posed. Indeed, there are many chiefs who sincerely would like
to gauge whether or not their departments engage in racially biased
policing, but have come to recognize that social science methods are
not fully able to produce the information they seek. Specifically,
while agencies can have reasonable confidence in the data they collect
from their officers regarding whom they stop, there are legitimate
questions as to whether there are, at present, cost-effective methods
for interpreting those data to reach valid, meaningful conclusions. An
agency can produce reasonably valid data to answer the question: ``What
percent of the people we stop in this jurisdiction for traffic
violations are Hispanics?'' The question we can't answer is ``What
percentage proves racial profiling?'' That is, an agency might
determine that 25 percent of its stops are of Hispanics but be unable
(because of the limitations of social science) to draw any reliable
conclusions regarding what this means. Some agencies might compare the
percentage of Hispanics stopped to census data and yet the people who
live in a particular area may be very different from who is traversing
the roadways. A department would want to compare the demographics of
those stopped with the demographics of those at risk of a stop, taking
into consideration numerous factors, including, but not limited to,
driving quantity, driving behavior, vehicle condition, and police
presence. This information is not readily or easily available.
The key point here is that, in the realm of ``racial profiling,''
some benchmarks can help us show disparity (number of people stopped as
compared with representation in the general community population, for
example). We don't yet have the social science techniques that can help
us to explain that disparity. That is, we cannot rule out all possible
explanations for that disparity except race.
In conducting data collection, we are asking social science to
determine whether there is a causal main effect between citizen race/
ethnicity and police behavior. To show this causal effect we must,
among other things, rule out all other possible explanations for that
disparity. To draw definitive conclusions regarding stop data that
indicate disproportionate engagement of racial/ethnic minorities, we
would need to be able to identify and disentangle the impact of race
from legitimate factors (such as driving behavior, driving frequency,
status of equipment, hot spot enforcement) that might reasonably
explain individual and aggregate decisions to stop, search and
otherwise engage people. Social science cannot do this well. As stated
in a U.S. General Accounting Office report (2000), because of
methodological challenges, ``we cannot determine whether the rate at
which African-Americans or other minorities are stopped is
disproportionate to the rate at which they commit violations that put
them at risk of being stopped'' (p. 18).\1\
---------------------------------------------------------------------------
\1\ ``Racial Profiling: Limited Data Available on Motorist Stops.''
Report submitted to the Hon. James E. Clyburn, Chairman, Congressional
Black Caucus, March.
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In an attempt to rule out alternative factors, agencies strive to
develop comparison groups against which to evaluate their vehicle stop
data. Specifically, agencies try to develop comparison groups that
reflect the demographic makeup of groups at risk of being stopped by
police in an unbiased world. We don't have this alternative unbiased
world for purposes of comparison and, instead, social science only
offers agencies alternatives for ``benchmarking,'' which are wanting.
(For instance, agencies are using census data, drivers' license data,
accident data and so forth to develop standards for comparison.) In
effect, the process of data collection is an effort to collect
``circumstantial'' evidence to tell us what is going on inside the
heads of police officers when they make decisions. The methods we have
are simply inadequate for the task.
PERF very much wants to increase the value of data collection
efforts and, to that end, we are currently engaged in a federally
funded project to develop guidance for police agencies in their
analysis and interpretation of data. Our hope is to enhance the general
understanding of the potential and constraints of these data and
promote their responsible use. (We do not, however, advocate mandatory
data collection.)
Indeed, let me emphasize that data collection can be one viable
response to the issue of racially biased policing so long as the policy
makers, including chiefs, understand what the data can and cannot do.
The key is to examine the objectives one wants to achieve and have a
full understanding of whether or not data collection can achieve those
objectives. It can be a good starting point for assessing overall
performance and be part of a comprehensive partnership effort with
citizens in addressing the problem. The downside of data collection is
misusing the findings because of a lack of understanding of its
limitations. This can cause harm to agencies, to individual officers
and to communities. This leads me to my specific comments regarding the
bill.
Prohibitions Against Racial Profiling and Enforcement
Because of social science limitations, the PERF project team was
disturbed during the course of the study to see policies that linked
``racial profiling'' results directly to officer discipline. This
clearly demonstrated a misunderstanding of where these types of data
might fall in terms of level of proof. It would be the equivalent of
punishing someone based on hearsay evidence alone. The results of data
collection efforts-whether at the individual or agency level-are not
``proof'' of misconduct. Thus, we were similarly disturbed that Title
I, Section 102 provides that ``[p]roof that the routine investigatory
activities of law enforcement agents in a jurisdiction have had a
disparate impact on racial or ethnic minorities shall constitute prima
facie evidence of a violation of this title.'' As noted above, a
finding of ``disparate impact'' is meaningless without proper analysis
and interpretation, yet S. 989 uses it to shift the burden to police to
prove they are not engaged in racial profiling. Data collection that
results in a finding of disparate impact does not necessarily indicate
that police are racially biased in their enforcement and investigatory
decisions. For instance, if a minority community having a problem with
a youth gang composed of mostly minority members asks for police
action, there may be a disparate impact when ``hot spot'' enforcement
is used, depending on the comparison group used to determine disparate
impact.
There are two related issues. One is that, chiefs may well be able
to explain to a sufficient level of proof that they are not engaging in
racial profiling, but they would still need to defend their actions in
court based on this limited data. Upon passage of this legislation,
there could conceivably be large numbers of police agencies in the
country called into court to explain why the percentage of ethnic
minority people arrested (per their Uniform Crime Report data) exceeds
their representation in the population. The second issue is that we
will be asking agencies to ``prove a negative'' with social science
tools that are quite limited. Agency information that shows disparate
impact can reasonably prompt additional investigation by police,
analysts and the community to consider the context and myriad factors
that went into the law enforcement decisions made. This is what is
happening nationwide. But, this type of information does not warrant
consideration as prima facie evidence of racial profiling.
The further harm of this provision is that it may have negative
consequences for law enforcement's legitimate crime control and
prevention activity in neighborhoods with largely minority residents.
Several PERF members-including Chief Edward Flynn across the Potomac
River in Arlington County, Virginia-shared recently that they have met
with leaders of predominantly minority communities who have agreed that
additional officer deployment in their neighborhoods is necessary to
address crime and disorder. The chiefs' concern was that these
deployments might increase allegations of racial profiling because
appropriate benchmarks and safeguards against improper analysis and
interpretation do not exist. They are concerned they will need to vest
significant resources to explain their actions in court, under a cloud
of alleged racial bias, even when their activities are legitimate. And,
indeed, this provision in the bill appears to do just that.
Shifting the burden to police agencies to prove they are not
engaged in racial profiling will only ensure that police agencies who
are called into court to justify legitimate law enforcement activities
that resulted in disparate impact, but no racial profiling, will have
their budgets drained to pay for legal defense. Exacerbating this
burden on police is the provision that law enforcement agencies that
cannot prove the ``racial profiling negative'' may be required to pay
``reasonable attorneys' fees as part of the costs, and may include
expert fees as part of the attorney's fee.'' While prevailing
plaintiffs may receive attorney's fees, even where police agencies
prevail, they seldom, if ever, recover the costs associated with
defending a claim.
At a time of stretched police agency budgets, it is the community
who will suffer if public safety funds are diverted to pay for
increased litigation against agencies based only on a finding of
disparate impact. We would not want the bill to divert police focus or
resources away from serving troubled communities.
PERF's report proposes that data collection should be considered by
citizens and the police who serve them as one of many tools that can be
used in a comprehensive approach to address racially biased policing,
and its use should be determined by the priorities and resources of
that community. There is an important place for data collection in the
range of possible police-community responses: It just isn't appropriate
to presume that disparate impact derived from data collection
sufficiently indicates racial profiling to justify the financial
burdens and stigma that is placed on police agencies even if they are
able to explain the results as unbiased policing.
Loss of Critical Funding for Crime-Ridden Communities
Another troubling aspect of S. 989 is that police funding under the
COPS program, Local Law Enforcement Block Grant Program and Byrne
grants could be lost for failure to comply with such vague mandates as
``cease existing practices that encourage racial profiling.'' Even if
the proscribed activity is better defined, it seems contrary to the
stated objective to take support away from citizens in violent
neighborhoods under these federal grant programs because there is a
police agency that is believed not to have ``adequate policies and
procedures designed to eliminate racial profiling'' (emphasis added).
The funds from these grant programs are being used across the
country to do tremendous things for communities. For instance, Local
Law Enforcement Block Grants (LLEBG) funds are being spent to enhance
domestic violence efforts, reduce gang crime, enhance security in and
around schools, provide recreational activities and job training for
``at risk'' youths, support juvenile drug courts to name just a few
uses. It would be tremendously unfortunate if the ``at risk'' kids,
domestic violence victims, juveniles with drug problems and students
lost their programs.
The objective should be to help all police agencies do the best
possible job to address racially biased policing. If there are
problems, we should work to solve them, not take away critical funding
that will further impair police services to areas plagued by crime and
disorder. It is important to remember that there are already in place
powerful remedies for addressing ``pattern and practice'' as well as
individual officer's misconduct that do not include taking funds that
ultimately benefit citizens in areas overrun by criminal activity.
We want to be clear on this point: There is no legitimate purpose
served by endangering critical public safety funds by adding
requirements that grantees address the specific racial profiling
mandates outlined by S. 989. Even those who argue that there are
reasons to include such mandates must realize the limitations of the
requirements that we discuss below.
Requirements for Grant Funding
policies
S. 989 requires that agencies must have a policy that states a
prohibition of racial profiling. We agree that agencies should have a
policy, but do not think this should be linked to federal funding. PERF
has developed a recommended policy that is already being considered
seriously by police agencies across the nation despite the fact that it
was released just two weeks ago. It has already been adopted by the
National Oceanic and Atmospheric Administration's (NOAA's) Office for
Law Enforcement with some modifications.
While our policy is similar in substance to that contained in S.
989, we believe our policy is clearer and, arguably, more encompassing
(covering all law enforcement decisions). (It is not clear, for
instance, whether the policy set forth in S. 989 encompasses police
decisions to arrest or use deadly force.) The PERF Model Policy has
been reviewed by law enforcement lawyers and constitutional scholars
and builds upon both the 4th and 14th Amendments of the Constitution.
In the 4th Amendment realm, our policy makes it very clear that race
can never be used as the sole factor to establish either reasonable
suspicion or probable cause.
data collection
The second requirement for receiving covered grants is ``the
collection of data on routine investigatory activities. . . to
determine if law enforcement agents are engaged in racial profiling.''
We do not support mandatory data collection because social science does
not currently provide us with the benchmarks and other tools necessary
to determine if law enforcement agencies are engaged in racial
profiling. This position has also been taken by the Major Cities Chiefs
for the same reasons.
And, as mentioned earlier, we think the decision whether or not to
collect data is best made by citizens and the police who serve them. We
think it is reasonable for these partners to decide that the money to
be expended to address this critical issue might be more reasonably and
effectively spent on other activities, such as academy and in-service
training programs designed to reduce racially biased behaviors,
adoption of the PERF policy with associated training, enhanced
supervision techniques, concerted minority hiring efforts, purchase of
in-car videos, and enhanced outreach to minority communities.
The data collection requirement in S. 989 includes all ``routine
investigatory activities,'' which include traffic stops, pedestrian
stops, frisks and other types of body searches, and consensual or
nonconsensual searches. In the PERF report, we discuss balancing the
need for information on high-discretion/low visibility stops against
considerations of response times, officer safety, community priorities,
resources, etc. Another consideration is that the benchmarking
challenges increase exponentially with every additional law enforcement
activity targeted (e.g., adding pedestrian stops to traffic stops).
Reflecting this balance, we propose that agencies choosing to collect
data, or mandated by state law, target vehicle stops (that is, traffic
and investigatory stops of motorists). Further, we acknowledge that
some agencies may choose to institute data collection in stages-adding
additional categories of activities as the system is developed. The
agencies collecting vehicle stop data or adding activities
incrementally to produce a sound system would be ineligible for covered
program grant funds.
citizen complaint and officer disciplinary procedures
S. 989 also requires that grant applicants have adequate citizen
complaint and officer disciplinary procedures to address racial
profiling. The PERF report supports procedures that will increase the
transparency and integrity of the citizen complaint process. We have
recommended, ``the public complaint management system include a
separate category to permit clear and accurate monitoring of complaints
of biased policing, with the capacity to identify patterns and
practices inimical to equal treatment of citizens.'' We recommend
audits of the complaint system with spot checks to evaluate
effectiveness. We have also recommended other means for ensuring that
complainants are not intimidated, discouraged or coerced in any way and
understand the process, among others. With that said, these
recommendations should never be a sanctioned requirement for federal
grants listed under covered programs in the bill.
As to oversight requirements for grantees, there is no single model
of police oversight that will work in every jurisdiction.\2\ The term
``independent'' used to describe the required complaint procedures is
not defined and will lead to myriad interpretations. The independent
complaint procedures required by the bill may exclude review boards
that effectively use both police and citizen input, if police
involvement means the process is no longer independent. The federal
government should not dictate to state and local authorities what type
of review board they should have, so long as the process is effective,
efficient and fair. In fact, the reason that PERF has opposed the
federal Police Officer Bill of Rights legislation called the State and
Local Law Enforcement Discipline, Accountability and Due Process Act of
2001 (H.R. 1626 and S. 840) is precisely because those federal mandates
would undermine the state and local controls and investigatory
processes that effectively hold officers accountable for misconduct.
The oversight provision is an inappropriate requisite for funding.
---------------------------------------------------------------------------
\2\ See, Walker S. (1995). Citizen Review Resource Manual.
Washington, D.C.; Police Executive Research Forum.
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Attorney General's Policies
It is unclear why there is a need for an additional policy
requirement that law enforcement agencies must meet ``such other
policies or procedures that the Attorney General deems necessary to
eliminate racial profiling'' to retain and gain federal grant funding.
We are unaware of why there would be a need to legislate such
authority.
Support for a Best Practices Grant Program
PERF agrees that an appropriate federal role in addressing racially
biased
policing is providing funds to enhance or create local police
efforts to address racially biased policing.
It is our understanding from Hill staff that the Section 302 Best
Practices Grant Program does not require compliance with the mandates
set out in section 301. If this is the case, PERF would support such a
grant program and is pleased that the list of supported activities
reflects some of the many suggestions in the PERF report about
effective responses to racially biased policing. (We should note,
however, that some PERF members voiced concern that the grant program
appropriations would be made from existing police funding programs such
as COPS, Byrne and Local Law Enforcement Block Grants. PERF would not
support draining existing law enforcement funds to support the new
grant program.)
The grant program is consistent with PERF's objectives to see more
work done in training and education, for example. Our report includes
recommendations for topics and methods of delivery for both training
and education. Police agencies should consider integrating education
and training related to racial bias in a wide range of curricula,
although a single course of instruction may suit immediate needs. The
funds for training outlined in the bill could also be used to train
officers in policies-such as the model developed by PERF-that clearly
and tightly restrict officers' use of race or ethnicity to make law
enforcement decisions. Expansive reforms to training and education
would benefit from federal funding support.
PERF believes that support for data collection technology will aid
those agencies that choose to collect data or are mandated by state law
to do so, but believes that the use of those funds as specified in the
bill be expanded further to help underwrite costs associated with
changing forms, increased personnel time and other associated budget
items.
Many PERF members have also struggled with finding funding for in-
car cameras and portable computer systems and would welcome grants to
support these efforts.
The best practices grants would include support for early warning
systems
tailored to the needs of each jurisdiction, which many PERF members
have considered adopting in identifying ``bad apples'' as well as
institutional policies and/or procedures that may have the unintended
consequence of contributing to racially biased policing.
In terms of accountability and supervision, PERF's report focuses
on the
need for an assessment of the organizational culture; quality
assurance
methods for all operations; an integrated approach for encouraging
police awareness and appreciation of racial/ethnic diversity and
cultural differences; and regular reviews of the complaint reception
and management/monitoring processes. Funding in these areas would be an
important investment in these critical processes.
According to the PERF report, supervisors should look for evidence
of improper practices and patterns and should be responsible for
ensuring that citizen complaints of biased policing are given a formal
and respectful hearing, and that complaints are documented in
accordance with agency policy. The ranking police representative should
ensure that complainants are not subjected to any form of
discouragement, intimidation or coercion in filing their complaints at
the police station or in bringing their complaints to the attention of
any officer. They must also provide the complainant with information on
how the department deals with complaints, and with the name of the
office responsible for handling them. Many of these recommended
measures would benefit from financial commitment to citizen complaint
systems and community education efforts that many agencies will
struggle to find in current budgets. PERF believes additional allowable
uses for grant funds might support efforts to increase minority
representation on our police forces or support trust-building
partnerships between agencies and their minority communities. Proactive
efforts to recruit and keep a diverse police force must be realized.
PERF also recommends periodic audits of selection processes to ensure
that qualifications and standards are valid and fair to all applicants
and that neither the sequencing of the testing stages nor the length of
the process hinders minority hiring. Once selected, police executives
should determine whether minority recruits are disproportionately
dismissed from the agency during recruit training, field training and
probationary periods, and if so, determine why and seek ways to reduce
that disparate impact.
Finally, there are many innovative minority outreach and
partnership efforts being conducted across the nation (and which are
described in the PERF report) that can be replicated and tailored to
other jurisdictions, which would also benefit from funding support.
Summary
In closing, we can appreciate that the sponsors of S. 989 want to
eliminate racially biased policing. PERF members join them in that
goal. We support the provisions in the bill that would provide federal
grants to support training, education, data collection for those who
choose it or are mandated by state law, new technologies such as in-car
cameras, and others. We should not, however, be holding back federal
grants that benefit citizens in crime-ridden communities if police are
unable to meet standards or requirements related to racially biased
policing, when other enforcement measures exist.
We hope that we can continue to work with staff and Members on
these and other law enforcement issues and that we will find
constructive grant programs and other measures that will help the vast
majority of police professionals in this country who are eager to
prevent and address racially biased policing.
Thank you.
Chairman Feingold. Thank you, Dr. Fridell. Thank you for
your testimony and for the kind words about aspects of the
bill. This gives me an opportunity to say again what I have
said many times, including working with law enforcement in
Wisconsin, that we are very eager to work with you on some of
the issues you have mentioned. We may be able to come to
agreement on some, others we may not, but that was a very
specific analysis of some issues that we will be seeking to
address.
Finally, our last witness will be Professor David Harris.
Professor Harris currently teaches at the University of Toledo
College of Law. I can tell you he is one of the most dedicated
people in the country on this issue. He is a leading scholar
and author of various articles on the subject of racial
profiling.
Professor, it is a pleasure to welcome you again to this
Committee and you may proceed.
STATEMENT OF DAVID A. HARRIS, BALK PROFESSOR OF LAW AND VALUES,
UNIVERSITY OF TOLEDO COLLEGE OF LAW, TOLEDO, OHIO
Mr. Harris. Thank you very much, Chairman Feingold, Senator
Sessions, members of the Committee. I appreciate the
invitation. Thank you for having me here today and giving me
the opportunity to speak on this problem.
I want to start by saying that there is no reason that we
should think that there is a choice to be made between
effective crime-fighting and backing off on racial profiling.
There is no such dilemma; it is a false dilemma.
We are sometimes told that there are only two ways to
enforce the law, the aggressive way which takes race into
account, and a softer way that will be ineffective but
respectful. Respectfully, I reject that dichotomy, and I think
every member of the Committee should also.
In this country, we can have, and we must have, law
enforcement that is both effective and respectful of the rights
of its citizens, and especially their right to proceed on the
streets or on the sidewalks, left alone, if that is their wish.
We must have that and, in fact, we do have that.
I agree with Chief Greenberg that there are cities in this
country where the example of Commissioner Kelly is being
followed in many different and very creative ways. Police
departments in these cities have found that they can reduce
crime, and keep it down in partnership with their communities.
They are working with their communities, not against them, not
treating members of those communities as potential suspects but
as partners. That is the way that we will get around this
problem. That is the way we will keep crime down.
Any successful partnership requires at its core that there
be trust. The word has already been used this morning and I
want to use it again, because the trust of the public is
tremendously important, indispensable to any policing effort.
Without trust, law enforcement cannot hope to perform its core
mission of serving people and protecting the Constitution.
Police officers need the public's trust to find out who the bad
guys are and they need members of the public to trust them when
they serve as jury and any police officers testify. If police
don't have the benefit of the doubt in the minds of the public,
we have a serious problem. That is where the rubber meets the
road on this problem.
When there is a widespread belief in our country, that
racial profiling is a common practice, trust is broken down and
becomes corroded. And that is something that none of us in this
room or anywhere else in this country, and certainly none of us
who wear the police officer's uniform can afford. It is simply
a cost we should not pay and, in fact, we don't have to pay
because we can, as I said, have both effective and respectful
enforcement.
Let me just make a couple of very brief points because much
has already been said today. It is clear that this is a
national problem. There is data from a whole variety of
contexts--traffic stops in Maryland and New Jersey, a stop-and-
frisk study in New York City, the Customs Service before
Commissioner Kelly implemented his reforms, and many others.
What is really striking about this data is that it is
consistent across the board. There was only one factor in all
of these data that predicted who would be stopped at higher
rates, and that was either race or ethnic appearance. At the
same time, the other shocking thing in this data, and this lies
at the core of my book, is that as other witnesses have said,
this is not a law enforcement practice that works. It is
inefficient. It does not get the bad guys.
In fact, we get lower rates of return in terms of arrests,
seizures of contraband, and so forth, when we focus on race
than when we do a good job and just focus on behavior because
race is descriptive and it is a good thing when it is used
descriptively of a particular suspect. It is not good when it
is used predictively, and that is where we get into trouble.
The Federal role in this particular piece of legislation,
Mr. Chairman, I think is very, very important. For years, the
Federal Government has had the lead role in guaranteeing the
Federal civil rights of all citizens, whether we are talking
about voting rights, whether we are talking about the right to
go to a desegregated school. This is of a piece with that.
More than that, though, the Federal Government also had a
hand in creating this problem through a Drug Enforcement
Administration program called Operation Pipeline which taught
profiling to agencies all over the country in a conscious
effort to spread profiling as law enforcement gospel. Though
the DEA says race was not a part of that effort, it has come to
be used that way. It was implicit in some of the training
materials that I have seen, and for that reason alone the
Federal Government has a moral obligation to step up on this
issue.
I would also like to just take a minute to emphasize that
data collection itself is not an end-all and a be-all. It is,
as Senator Hatch quoted from earlier testimony, an important
step, but it is clearly not the only step, and this bill takes
us into the phase of crafting solutions.
But as Captain Davis said, if I have no data, how can I
manage? If I have no data, how can I have accountability?
Accountability is what this issue really comes down to in so
many ways. Without data, we don't know how to hold our agencies
accountable and our officers accountable. For that reason
alone, this bill is worth considering in the most serious
possible way.
Last, it is important to emphasize a point made by Senator
Schumer. This is sometimes viewed as a black problem or an
African-American problem. Surely, it is that, but Latinos,
operate under what he called the double whammy of being
criminal suspects and suspected illegal immigrants. And this is
happening not just in the border Southwest where we have heard
about the INS and the Border Patrol, and so forth, but also in
a region of the country like mine, northwest Ohio. We are
closer to Canada than Mexico, but have had State police
stopping people and confiscating their green cards, and not
just any people who might be immigrants, but only those who had
an Hispanic appearance.
In closing, let me just say, Mr. Chairman, I appreciate
very much the chance to speak to the Subcommittee. I appreciate
your leadership on this issue. S. 989 is a huge step forward
and I am hopeful that the Committee will give it every
consideration.
Thank you for the opportunity.
[The prepared statement of Mr. Harris follows:]
Statement of David A. Harris, Balk Professor of Law and Values,
University of Toledo College of Law, Toledo, Ohio
Chairman Feingold, Ranking Senator Thurmond, and distinguished
ladies and gentlemen, thank you for holding this hearing. I am David
Harris, Balk Professor of Law and Values at the University of Toledo
College of Law in Toledo, Ohio. I have been researching and writing in
the field of racial profiling for more than six years. My book,
``Profiles In Injustice: Why Racial Profiling Cannot Work,'' will be
published in January of 2002 by The New Press in New York. I thank you
for inviting me to address you today.
Few topics have become more important to the general public over
the last few years than racial profiling: the use of race or ethnic
appearance, along with other factors, to single out individuals for
police investigation. When we think of racial profiling, we think of
traffic stops. But this type of bias can rear its head in many
different types of routine police encounters, such as stops and frisks
on city streets. Polling by the Gallup organization shows that a
majority of all Americans--not just African Americans, Latinos, or
other minorities feel that racial profiling is a widespread phenomenon,
and that it must be rooted out. The evidence that we have from the
first statistical studies--from New Jersey, Maryland, New York, and
other places--confirms this belief.
Before going further, it is important to understand what this
problem is really about. For many, the term ``racial profiling''
translates into police racism and bigotry, pure and simple. Police
officers themselves often feel accused of racism, individually and
collectively, whenever the topic of racial profiling is raised. I
believe that this is an oversimplified and in many ways inaccurate way
to view this complex social problem. While there surely are bigots
among police officers, this is true of people in every walk of life.
The problem is not the bigotry of a few wayward individuals, but a set
of biased institutional practices. Most often, this bias is
unintentional; police officers by and large are good people who want to
do a good job serving the public. Those who use race or ethnic
appearance as a possible indicator of criminality almost always do so
with the best of intentions: they feel it is the right way to fight
crime. But whether we are aware of these biases or not and whatever the
intention behind them, racial profiling is doing great harm to policing
and the entire criminal justice system. It is high time we examined
these practices carefully. And when we do, we find that using racial or
ethnic appearance, except those describing particular people, is not
good policing at all.
A National Problem
African Americans, Latinos, and others have long complained about
being singled out by police on the basis of racial or ethnic
appearance; the problem is not new. But for years there was no solid
proof that this was a real and widespread phenomenon. As recently as
1994, there were no statistics from anywhere in the country that would
have helped to clarify the scope and extent of the problem.
This began to change in the middle and late 1990s. Court cases in
New Jersey, Maryland, and elsewhere, and investigations by the press in
other states, began to produce reliable statistics for the first time.
They came from different places, involved different police agencies,
and different law enforcement contexts. Despite these differences, the
statistics were remarkably consistent: African Americans, Latinos, and
other minorities were, in fact, stopped and investigated by police in
numbers far out of proportion to their presence on the roadways, on
city sidewalks, and in airports. Driving behavior didn't explain this;
presence in high-crime neighborhoods didn't explain this; only race
explained it. And, as I argue in my book, the data demonstrate that
racial profiling does not catch criminals at any better rate than other
methods; in fact, it does a worse job. Thus it is ineffective as well
as immoral and personally damaging.
Given the wide variety of localities these numbers come from--New
Jersey, Maryland, Florida, New York City, Colorado, California, and
others--it is clear that this was a national problem. This does not
mean, of course, that profiling happens everywhere, in every police
department. But the data reveal a pattern spread among so many
different contexts that the issue has become a national concern.
The Federal Role
At this point, the question of racial profiling has become part of
the public debate in most states and many cities around the country.
Thirteen states have passed some kind of legislation requiring some
form of data collection on traffic stops or other routine police
encounters by some or all of the police agencies under their
jurisdictions. In addition, several hundred police agencies that are
not obligated to do so have begun collecting data on traffic stops. The
data collected vary, but almost always include the race of the driver,
the reason for the stop, and the outcome of the stop. Thus we might ask
whether federal legislation such as S. 989, the End Racial Profiling
Act of 2001, is necessary.
I believe that the answer to this question is a strong and emphatic
yes. We should encourage state and local authorities to take action on
racial profiling; S. 989 would do exactly that, without discouraging or
supplanting state and local efforts. In addition, there are things the
federal government can do that are unique to its role in our country
that will move police departments in the right direction. Moreover, we
must keep in mind that, despite laws in thirteen states and the several
hundred local efforts already under way, the great majority of the
thirteen thousand police departments in our country have not changed
their policies or practices and are not collecting data. Thus it
remains important for the federal government to act, and to act now.
First, our federal government has an historic role as the guarantor
of federal civil rights. Whether we think of the right to attend an
integrated school, to vote, or to use public facilities without
discrimination, it has been the federal government that has often
stepped in as the ultimate guardian of what our Constitution secures
for all citizens. This has involved all three branches of the federal
government at different times and in different contexts, often working
together. Racial profiling represents the same kind of challenge: where
this practice goes on, it is a direct violation of the Fourteenth
Amendment's guarantee of the equal protection of the laws that all
Americans enjoy. Thus, far from being an intrusion on the role of the
states, laws like the End Racial Profiling Act allow the federal
government to fulfill one of its most important functions: assuring
that all citizens everywhere are treated equally by the states and
their agents, in accordance with their constitutionally guaranteed
civil rights. The Supreme Court of the United States has said, without
ambiguity or equivocation, that racially biased law enforcement
violates the equal protection of the law promised to all Americans
under the Fourteenth Amendment. Whren v. U.S., 517 U.S. 806 (1996)
(Scalia, J., writing for the majority).
Federal action is also appropriate on racial profiling for a second
reason: the U.S. government had a key role in causing the problem. In
the late 1980s and early 1990s, the Drug Enforcement Administration
launched Operation Pipeline. This was a consciously adopted federal
program--not an accident or a ``rogue policy,'' but a carefully devised
stategy. The idea was to take the ``drug courier profile'' that the DEA
used in airports and bring it to the roads and highways. The DEA did
this by training many thousands of state and local police officers in
profiling techniques, who in turn returned to their own departments and
trained their fellow officers as well as officers from other
departments. The upshot is that by the early 1990s, uncounted numbers
of police agencies all over the country were conducting profiling
operations--many of them using race and ethnicity. The DEA still denies
that its profile training utilized race or ethnic appearance.
Nevertheless, implicit suggestions about which racial or ethnic groups
were involved in drug trafficking is evident in training materials, and
explicit information suggesting racial patterns in drug trafficking
were featured prominently in drug intelligence reports supplied by
federal agencies to state and local departments across the country.
(Incredibly, at the end of 2000, a DEA spokesperson conceded that DEA
still used race and ethnic appearance to decide which drivers to search
and investigate, but only after the drivers had been legitimately
stopped for other reasons.)
Given this federal activity, racial profiling was all but
inevitable at every level of enforcement around the country; its
appearance and the outcry against it can hardly surprise us at all.
Thus it seems only fair that the federal government take the lead role
in helping state and local law enforcement come to grips with the
problem.
Third, S. 989 uses a balanced approach to the problem that only the
federal government can take. The bill uses both the carrot--federal
funding for best police practices that can get us beyond profiling and
other forms of biased policing--and the stick: a direct prohibition on
racial profiling, and the threat of legal action and the loss of
federal funds for departments that continue these practices. Combined
with collection of data on traffic and pedestrian stops, S. 989 can
help police agencies across the nation to make direct and
straightforward efforts to address this issue, and move those
departments toward the best of what law enforcement can be in the
twenty-first century. Our nation can accept no less.
Data Collection as an Accountability Tool
Probably no other aspect of the debate on racial profiling has
stirred more controversy than mandates to collect race and other data
on drivers or pedestrians stopped by the police. Critics say that data
collection is an impossible and expensive task that, in the end, will
tell us little. And in point of fact, it is true that data collection
has at times been oversold as THE SOLUTION to the problem of racial
problem, a panacea of sorts, and has sometimes been undertaken that
way--data collection for the sake of data collection.
But these critics are both shortsighted and selective in their
views of the facts. Yes, collection of traffic or pedestrian stop data
is a complex task, and analysis must be sophisticated and must include
the appropriate contextual information in order to be useful. And
statistical protocols used in these studies must include appropriate
benchmarks for comparisons to police activity--not residential census
numbers, but accurate counts of the actual racial and ethnic
populations on the roads being studied. Contrary to what the critics
imply, this work is already being done, now, in many places around the
country--not only on highways, but on mixed used, urban/suburban street
environments. And collecting this data and analyzing it have proven to
be less time consuming and expensive than almost anyone anticipated. It
is simply untrue to say that good statistical work on this problem is
too difficult or not worthwhile; these conclusions represent biased
judgments made on less than complete information. Surely, data
collection will not solve the problem itself. But it is a first step--a
necessary first step--in our efforts to address this problem. Data
brings us out of the realm of anecdote, and into the world of hard
facts. And everyone concerned with racial profiling, from whatever
perspective, has much to gain from basing the debate on facts.
But there is another, perhaps even more important principle at
stake in the debate over data collection: accountability.
Accountability is a bedrock democratic principle; institutions of all
kinds must be accountable to the people and their representatives.
These institutions includes the armed services, federal agencies, local
school boards--and, of course, police departments. Police agencies
often have a paramilitary structure, and the jobs they undertake are
often difficult and dangerous. Nevertheless, police departments are--
they must be--accountable to those they serve, especially given the
great powers officers have over citizens' lives and liberty. Data
collection is essential for accountability, because accountability
requires facts. Holding a public agency or institution accountable
requires that both its own managers and the public have the solid
information necessary to understand what personnel are doing. Good
public policy choices must be based on facts. Strong feelings aren't
enough; statements that the public must ``trust us'' by those inside
law enforcement institutions aren't enough. Only facts will do. Without
data collection, police agencies are left naked in public struggles
that challenge their practices; they simply don't have the information
they need to make credible responses. For that reason alone, data
collection is an absolute necessity.
It's Not Just ``Driving While Black''
In the early public discussions of racial profiling, this set of
practices was often portrayed as a ``black issue.'' This stemmed from
the fact that those who first raised these concerns were African
Americans, and from the pithy label they sometimes gave the experience:
``driving while black,'' a bitter twist on the legitimate driving
offense of driving while intoxicated. But it is important to understand
that racial profiling does not only hurt African Americans. It also has
an impact on many other racial and ethnic groups--Latinos, Asians, and
Native Americans, for example, depending on the area of the country.
Latinos, in particular, suffer the effects of racial profiling in
profound ways. As I discuss in my forthcoming book, Latinos labor under
a double burden. First, they are stigmatized as likely crime risks,
just as African Americans are. Second, they are looked upon as
suspected illegal immigrants. This is especially true in the border
states of the American Southwest, but it has become common elsewhere as
well. For example, in Northwest Ohio, where I live--an area closer to
Canada than to Mexico and the rest of Latin America--a federal court
had to enter an injunction to stop state troopers from stopping Latino
drivers to question them about their immigration status and routinely
seizing their green cards. The Latino drivers were given no explanation
and no information on how they might go about getting their cards back,
despite the fact that it is a federal crime to be without one. In areas
nearer to the Mexican border, American citizens of Mexican descent are
routinely stopped, questioned, and made to justify their presence in
the country by agents of the Immigration and Naturalization Service,
the Border Patrol, and other federal agencies. Every segment of the
Latino population has been swept into this net, from laborers to
professionals of every stripe--even lawmakers and judges.
This explains why the issue of racial profiling has become an issue
of deep concern in the Latino community. Latinos know that as hard as
they work, as much as they achieve, they can, at any moment, be stopped
and questioned by the authorities--their very right to be in this
country attacked. They feel, in short, guilty until they prove
themselves innocent. And with Latino populations in the United States
burgeoning in virtually every corner of the nation and in every large
American city, racial profiling promises to affect more and more
innocent, hard working Latinos every year.
Conclusion
I respectfully urge this body to give S. 989 favorable
consideration, and I look forward to answering any question that any of
the members may have.
Chairman Feingold. Thank you, Professor, for your excellent
testimony and your leadership on this. I want to thank
everybody for doing very well in terms of keeping remarks
concise, and I appreciate that so that we do have a chance to
ask questions.
In a moment, we will start the 5-minute question period,
but first I want to acknowledge the presence and participation
of Senator Jeff Sessions, of Alabama.
I would at this point like to ask unanimous consent that
the following statements in support of the bill be placed in
the record from the Leadership Council on Civil Rights, the
National Council of La Raza, the Hispanic American Police
Command Officers Association, the American Civil Liberties
Union, and the Mexican American Legal Defense and Educational
Fund.
Senator Sessions. Mr. Chairman?
Chairman Feingold. Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. If I could just thank you for your
leadership on this issue, I know you held hearings last year or
the year before. You discussed it significantly. It was raised
during the Ashcroft nomination, who participated with you on
the Subcommittee. He made some commitments for leadership.
The President even talked about it in the State of the
Union message. It is an issue that is getting heightened
attention, and that in itself, I am confident, has improved
some of the things that have happened just in the last 2 years
as it becomes an issue more discussed. So I salute you for
taking the lead on this.
Chairman Feingold. I thank you for your participation and
look forward to working with you on the Committee as the
legislation moves forward.
I will begin a first 5-minute round, and let me just make a
quick comment with regard to Chief Greenberg. I know you have
strong feelings on this topic and I respect them and appreciate
your being here, but I do want to make one statement for the
record with regard to your testimony.
You came somewhat close to suggesting that this racial
profiling legislation is being used by its sponsors to conceal
their true desire, which I believe you suggested is to legalize
drugs or weaken enforcement of this country's drug laws. I can
assure you that this Senator has no such hidden agenda. I have
seen the devastation caused by drug abuse in our communities. I
support enforcement of our Nation's drug laws.
But I have also seen the devastation caused by racial
profiling. I believe that effective law enforcement can exist
side by side with bias-free law enforcement, as Professor
Harris very eloquently suggested. In fact, I think it already
does in many brave and honorable public servants, but I don't
think you do the cause of law-abiding and color-blind officers
a real service by claiming that those of us who see a problem
in this country with racial profiling are motivated by a desire
to undermine enforcement of the drugs laws. There is simply no
way that that is what I am about, and I don't believe anybody
else who is involved in this effort is about that, but I do
appreciate your being here.
Now, I would like to ask Mr. Young a question. I appreciate
all the work that went into your testimony, and you raised some
provocative points that I would like to explore.
I did want to comment on one theme of your statement that I
find mistaken and somewhat unfortunate, and also unnecessary to
most of your critique of the bill, and that is what you say
about what the premise of the bill is that somehow it is about
the notion that law enforcement officers are racist.
You say, for example, that this bill ``presupposes that a
man or woman in a police officer's uniform is inclined to be
racially biased.'' I reject that assertion, both about police
officers and about the bill. It is just not true. The vast
majority of law enforcement officers are not racially biased
and carry out their duties professionally. But we have a
problem in this country with racial profiling, or as Dr.
Fridell would prefer, racially biased policing.
You say yourself that the investigation of a citizen solely
based on race is wrong, but happens and it has to stop. That is
what this bill is about. In fact, you say on page 2 of your
testimony that this bill may mean that no minority will be
stopped, searched or questioned, no matter how suspicious the
activity, without a specific eyewitness account. Again, I have
to disagree.
Of course, if somebody runs a red light, he or she should
be stopped, regardless of race. Of course, if someone is
driving a car in a reckless manner, he or she should be
stopped. All this bill says is that the driver's race should
not be a factor in the decision whether to stop the car. I have
a hard time really understanding what is objectionable about
that or how that prohibition assumes that police officers are
racist.
I would give you a chance to respond.
Mr. Young. Well, I don't know that the bill is specifically
limited to traffic stops, and when you eliminate the use of
race to any degree, there are times when--I mean, how do you
transmit a broadcast without using the race of a person who
might be a suspect?
We are certainly not supporting the idea that race alone
would be a cause of action for any police action, but the bill
prohibits the use of race to any degree, and that is where we
have a problem with it. It eliminates it as one of many factors
that we might use.
Chairman Feingold. Let me just guarantee you that that is
not the case. The bill does not say that. Race can be used, for
example, or other description in looking for a particular
suspect. If there is any language in there, sir, that leads you
to that conclusion, I am happy to take a look at it as we go
forward with the legislation. That is not the purpose.
In fact, you are correct. The bill is not limited only to
traffic stops. It also does relate to pedestrian situations and
others. But, again, it does not prohibit including in the
specific description of somebody you are looking for the race
or background of a person. That is not the intent. I also don't
think that is the language.
My next question is for Mr. Kelly and Captain Davis on the
question of data collection. Please comment on the concern that
has been raised that data collection interferes with an
officer's work and can lead to low morale and poor policing. Do
you agree and what has been your experience?
Let's start with Mr. Kelly on that and then Captain Davis.
Mr. Kelly. I think in the Customs Service it was something
that was not done consistently, and the number of people who
were stopped and questioned was relatively small during any
inspector's tour. So I don't think it is particularly
burdensome as far as recording this information.
I can also tell you that there is emerging technology that
allows information to be taken in hand-held devices very
quickly, and there are several law enforcement organizations
throughout the country that are, in fact, using these devices.
There was a hearing 2 weeks ago that was mentioned about the
use of technology in helping to prevent racial profiling. There
were several vendors there who have this technology.
So I think in terms of being a burden, increasing workload,
that is a minimal problem because of the technology and also
because of the volume work. I don't see it at all as being a
moral issue. I can tell you in the Customs Service that the
reason it was successful was because of the inspectors, the
people who man our borders 24 hours a day. They got the
message.
I think they were not sufficiently served by management.
They weren't given adequate training, they weren't sensitized
to the problem, and they responded magnificently, in my view,
when, in fact, they became aware of the problem.
So I would say that it has, in my view, bolstered their
morale because they are seen as acting in a more professional
manner. So I would disagree with the assertion that it impacts
adversely on morale and that it is somehow an administrative
burden for individual officers.
Chairman Feingold. Thank you very much.
Captain Davis?
Mr. Davis. Yes, sir. I would agree with Commissioner Kelly
that data collection does not cause low morale. A lack of
leadership causes low morale. Racial tension and violence in
the community causes low morale. I have not seen agencies that
have suffered from low morale because you collect data.
Policing in America is really a data-driven industry. It is
kind of interesting that we don't want to collect the
statistics to show whether or not there is a problem that
exists or identify the levels, and to make the argument we turn
around and use those same statistics to show why we shouldn't
do it. This is a data-driven profession. I think the officers
recognize that. They should be obligated to document the stops
they make.
It is probably the most awesome responsibility in this
country, and I am not necessarily talking about the ability to
take life, but the ability to take freedom without any type of
due process. The ability to detain is very serious and it
should be documented and it should be tracked. From statistics,
you make intelligent inferences. I think officers understand
that.
One of the things we are looking at with agencies that are
collecting data that I agree with is that they can actually
fill out a form 5, 10 seconds after the stop and collect
sufficient data to come up with comprehensive analysis. I think
when officers understand the purpose of data collection, how
increases community trust, how it increases the partnerships
that will be necessary to reduce crime, then they enjoy a
better relationship with their community and that reduces
tension and increases morale.
If you look at some of the cities across this country, and
I will use Cincinnati as an example, there is not tension or
low morale because we collect data. There is tension and low
morale because there was racial tension, because there were
minorities who felt disparate treatment.
I would also say this in closing. I am a police officer, I
am a commander. It is my job to serve the public. It is not the
public's job to serve me, and if it is a burden, so be it. I
accept that as law enforcement. My obligation is to protect and
defend the Constitution.
Chairman Feingold. Thank you very much, Captain. I do have
more questions, but now we will turn to Senator Sessions for
his first round of questions.
Senator Sessions. Thank you. It is good to see Chief
Greenberg again. I remember when I was United States Attorney
in Mobile and we tried to lure him away from Charleston. We had
him there for a number of months to run our department, but
Charleston lured him back home, I suppose. He is one of the
best-known police chiefs in America and has been the subject of
``60 Minutes'' and other national news shows about his
effective and innovative ways of policing.
His focus on community-based policing has now become the
norm, hasn't it, Chief, in America?
Mr. Greenberg. Yes, it has.
Senator Sessions. Certainly, the Department of Justice over
the last decade or more has emphasized that. It is something
you championed early on, and that leads me to a question.
Professor Lawrence Sherman, formerly of the University of
Maryland and now, I think, the University of Pennsylvania, was
the consultant for the Department of Justice under Attorney
General Reno. I came to admire some of his work. One of the
things he said was that the best way to fight crime is to look
at zip codes, and where you have high crime rates in a certain
zip code, if you place your resources there you will get the
biggest bang for reducing crime.
Would you agree with that, Mr. Greenberg?
Mr. Greenberg. Yes, I would agree with that.
Senator Sessions. I would tell this story, Mr. Chairman.
Around 1990, I took the lead in a program called the Weed and
Seed program in Mobile. The Martin Luther King area had
declined; crime was rampant. Housing values had plummeted. The
good neighborhood that so many fine African-American citizens
had grown up in had completed gone down.
We had a town meeting and we put up signs for people to
come, and said we want to hear your views for solving the
problem in your neighborhood and what we need to do to improve
the neighborhood. They came back, and every one of our ten
breakout groups of citizens said to do crime was either No. 1
or No. 2 on their list. They asked for more police. They asked
for a police precinct to be put in that neighborhood because
they were afraid for their lives and their children's lives.
So I guess what I am saying is, are you afraid, Chief
Greenberg, that a police chief who is responding to the
legitimate concerns of his citizens for public safety might be
in a catch-22? If he is more aggressive in a neighborhood where
the high crime rate is, which may be a minority neighborhood,
he might be criticized statistically in some way under this. Is
that what maybe Dr. Fridell was suggesting, also?
Mr. Greenberg. Well, I am cognizant of that fear, but I am
also more cognizant of the fear of the individual police
officer about what is going to happen to him if he takes it
upon himself to do in most cases what needs to be done, and
that is to aggressively investigate crime.
If you have these kinds of numbers taken, police officers
are pretty smart and they are going to figure out a way that
they will be on the right side of those numbers. If they know
that a certain number of people are African-American or
Hispanic or Asian or whatever, his arrests are not going to be
too far out of line with that particular expectation. I think
that is bad for law enforcement and I think that is bad for our
country.
I would not try to convince you that there are no racists
in law enforcement, and I hope that none of you would try to
convince me that there are no racists in Congress, because I
don't think either of us would be successful to convince each
other of those things. Nonetheless, that does not mean that
because there may be problem individuals in law enforcement
that that necessarily permeates the whole law enforcement
arena. It does not.
Senator Sessions. Well, I guess the point I was raising and
what you were suggesting there and Dr. Fridell was suggesting,
I think, in her remarks is it could cause an officer to be
intimidated from doing the very things necessary to protect the
African-American community if we misread the data, if we over-
read the data.
Is that what you were saying, Dr. Fridell?
Ms. Fridell. Yes. From my written remarks, we talked
specifically about we have had some great discussions in some
PERF meetings about all aspects of racially biased policing.
One of the concerns that was raised several times is the chief
said my minority communities come to me and they say we need
help with crime and disorder, please provide more deployment
and more officers down there.
Of course, the responsible chief is going to respond to
that. But the more deployments you have, then the more activity
you are going to have and it is going to show disparate impact.
So our concern that we were pointing out in our statement is
that they need to respond, they will respond, but, in fact,
they are setting up the statistics to be drawn into court with
all of the resources that that entails to prove the negative.
Senator Sessions. You mentioned that if you had disparate
statistics, that could establish a prime facie case for a
lawsuit of some kind. Would you explain that?
Ms. Fridell. Well, yes. I was just commenting on 301 of
Senate bill 989. It doesn't indicate whether it is new data,
but it is department data that could bring a department into
court because the activities of law enforcement show a
disparate impact on minority communities. So it definitely
relates to what I just said.
hen what I also added in my remarks is that the ability of
social science--we can, depending on what benchmarks you use,
show that disparity enough to get that department into court.
Where we are sorely lacking is our ability to explain it, and
we are putting the agency in the position to have to come in
and prove the negative based on disparity. I know there is very
little in social science that will be able to help the agency.
Senator Sessions. Mr. Young, have you done any analysis on
the cost of this essentially unfunded mandate?
Mr. Young. No, sir, but the penalties in the bill, the
threat of suspending Federal funds and the expected cost of
litigation to both the agency and the agent--we haven't done
any math on that, but I would imagine it would be
insurmountable for most agencies.
Senator Sessions. Well, I would say this. I think it is
likely that within every department there are some officers who
subtly, if not otherwise, are biased in the way they go about
enforcing the law. I think that is just life. We know that to
be true.
I think it is a high calling, Mr. Chairman, to try to do
something about that, and it is not legitimate that an American
citizen feels that they are more likely to be arrested or held
to account or stopped and searched than someone else simply
because of the color of their skin. So we have got a problem
that I think is one that this Nation needs to wrestle with,
that law enforcement needs to wrestle with. NOBLE is a fine
organization and I respect it.
It is a matter we need to wrestle with, but I don't want to
create a circumstance that has our communities maybe subject to
more lawsuits than necessary, even causing them to pull back
from neighborhoods where the neighborhoods have asked them to
come to help reduce crime that is threatening the public
safety.
Thank you.
Chairman Feingold. Thank you, Senator Sessions.
Let me begin another round, and before I ask a question I
just want to again, in pursuit of the issue I am talking about
with Mr. Young, just read the language in the bill because I
sincerely want to make sure we are on the same page.
The bill says on page 16 that racial profiling does not
include reliance on such criteria in combination with other
identifying factors when a law enforcement agent is seeking to
apprehend a specific suspect whose race, ethnicity or national
origin is part of the description of the suspect. So I hope
later on we can talk about whether that adequately responds to
your concern.
If you would like to say something about that right now,
you can.
Mr. Young. Well, Mr. Chairman, I took my language directly
out of that. It is 501(c)(5) of the bill. In the definition of
racial profiling it says, ``The term 'racial profiling' means
the practice of a law enforcement agency relying to any degree
on race, ethnicity, or national origin in selecting individuals
to subject to routine investigatory procedures.'' We may have a
different perspective on the interpretation of that language,
but to us, ``to any degree'' means not now, not ever.
Chairman Feingold. Let me assure you that the very purpose
of the language I read is to limit the language you read, to
make sure that it does not affect your ability to identify
something with regard to an actual suspect. But we will pursue
this more and I think you, in good faith, want to work with me
to clarify that.
Mr. Young. Yes, sir.
Chairman Feingold. Let me go to what Senator Sessions had
brought up, responding, in effect, to the arguments made both
by Dr. Fridell and Mr. Young that a law enforcement agency that
responds to requests for help from a minority community with
more policing is risking creating data that will support a
claim that the agency is engaged in racial profiling. They cite
the example of Arlington, Virginia.
I am wondering if Professor Harris could respond to that.
Mr. Harris. I would be glad to, Mr. Chairman. The context
of any data collected is always a concern. If you are going to
collect data, you have to be sensitive to the context from
which it comes. This includes the neighborhood from which it
comes. It includes perhaps any special operations or special
assignments or special deployments that the department has
made.
So the example of Arlington that I saw in the testimony of
Dr. Fridell--I understand where Chief Flynn is coming from, but
if he collects the data and it shows a bulge in enforcement in
that neighborhood, there is a perfectly good explanation for
it. He has been asked to come in there and is doing the
enforcement that the community wants, and nobody but nobody
should take him to task for that as long as that is made clear.
Now, it is true that people sometimes look at data
simplistically and misuse it. I don't know that we can help
that, but to jump from that to say there is nothing that we
could do with data, there is no way to collect it
satisfactorily, there is no way that these contexts could be
factored in, I just have to disagree with that strongly.
Data with adequate benchmarks is being collected now in
communities across the country. This is not only highway-type
data, it is data from urban and suburban jurisdictions, mixed-
use roadways. It can be done, it is being done. What it takes
is our commitment to get it done and for our commitment to
exist even when we have problems with crime in any particular
neighborhood.
Deployment does not mean that we are necessarily going to
have more traffic stops or pedestrian stops. If I am a chief, I
could put lots more officers in and order them to do something
else. It is important that we have a handle on exactly what is
going on so we can manage it, as Captain Davis said, and you
can't manage what you don't measure. That is why we have to
measure it.
Ms. Fridell. May I respond?
Chairman Feingold. Yes, ma'am.
Ms. Fridell. One of the parts of Mr. Harris' remarks
included having the chief go into court. First of all, the
chief is going to have to go into court and explain this and
this will take resources away from the community.
David Harris and I have had a lot of discussions on
benchmarks. In fact, he is going to be joining PERF, as well as
Captain Davis, as a matter of fact, in coming up with guidance
for law enforcement agencies so that we can develop what those
best benchmarks are. So we have got a project that starts on
Monday and Tuesday, bringing the best social scientists
together, as well as law enforcement, and looking at how we can
make it better. So PERF is certainly not throwing out the baby
with the bath water. We want to make it better. But, again, the
premise was that this chief has to get called into court.
Chairman Feingold. Doctor, I think we may be able to
resolve that at some point, so we will work on that point.
I am going to ask a different question. I think we need to
get this on the record. Some have said--and Chief Greenberg's
testimony touches on this issue--that blacks and Hispanics
carry more drugs and guns than their representation in the
overall population would suggest. Therefore, it is rational,
they say, for police to stop and search a disproportionate
number of blacks and Hispanics.
I would ask Professor Harris and Dr. Fridell if they agree
with that and how they respond to that. First, Professor
Harris.
Mr. Harris. This is the argument that I hear most often in
favor of using race as some component of law enforcement, that
it is only rational or only makes common sense, given arrest
figures or incarceration numbers.
It is true that there is disproportionate African-American,
Latino and other minority involvement in many types of crime.
That is a sad fact, but it is a fact and I am not here to deny
facts. I don't think we get anywhere by doing that.
What I can tell you is that the data show very clearly that
using race to focus enforcement resources does not work, that
it is inefficient. And the returns that law enforcement gets
when it uses enforcement based in part or in whole, either one,
on race are not as great as when it focuses on behavior. If it
focuses on behavior, we are successful. That is the lesson of
Commissioner Kelly and the Customs Service and it is the lesson
we should all learn.
When we focus on race, we get off the track, and instead of
the higher numbers of African-Americans that that theory would
predict, we get lower numbers. So we have to be sure to
eliminate race so that we can have effective enforcement.
Chairman Feingold. Thank you.
Dr. Fridell?
Ms. Fridell. Yes. PERF has a policy. When we did a survey
in our focus groups, we became very aware of the fact that
police are not getting guidance in when it is appropriate to
use race to make law enforcement decisions.
First and foremost, as our policy says, you do not stop
people unless you have reasonable suspicion or probable cause.
The policy that we came up with--it took us about 8 months and
we conferred with not only law enforcement executives, but
constitutional scholars, to come up with both Fourth Amendment
and 14th Amendment provisions that talk about when race can be
used.
Race is a demographic like height and eye color. It is a
descriptor like clothes, and our policy cuts pretty close to
what you have in the bill in saying that it is very restrictive
and can never be used as the sole factor and can be used
similar to other demographics like height, and so forth, to
establish reasonable suspicion and probable cause.
Chairman Feingold. Thank you.
Senator Sessions?
Senator Sessions. Thank you. The Supreme Court has been
pretty firm on this, and I think it is clearly a violation of
an individual's constitutional rights to be stopped solely for
racial reasons. That can be raised now if you are arrested. You
can use it to suppress a search. You can file a Bevins or some
other lawsuit against the officers who do that. So we are not
without any defense when that occurs.
But I think most people are not going to file a lawsuit if
they have been mistreated. They are just going to nurse a
grudge and feel like their country hasn't treated them fairly.
So that is why we need to deal with it and keep talking about
it and see if we can come up with a policy that will work.
I just would offer for the record, Mr. Chairman, a letter
from the city of Daleville, which noted that ``the threat of
being sued because proportions of people being stopped or
arrested do not comply with federally prescribed formulas is...
dangerous. I fear that lower-income African-American citizens,
many of whom are elderly or single-parent families, are most
vulnerable to the dangers brought about by a retreat from their
neighborhood,'' that is, by the police officers retreating.
``They need our protection most. We cannot give it to them if
we are under the threat of being sued.'' He says, ``I want to
help you address the evils associated with racial profiling''
and cautions us in that regard.
I would like to offer that as part of the record.
Chairman Feingold. Without objection, it will be placed in
the record.
Senator Sessions. Mr. Kelly, you have taken some strong
leadership on this. Have you had a chance to analyze this
legislation as it is proposed today? I know Senator Feingold
will consider any good suggestions we have. Do you have any
parts of it that trouble you?
Mr. Kelly. Well, there are some issues that I am concerned
about. Again, in my prepared remarks I said I hope that law
enforcement agencies would adopt these good practices that are
being put forth by PERF and other law enforcement
organizations, and do it on a voluntary basis. I think most
thoughtful law enforcement executives know that something has
to be done and this has to be addressed.
I have some of the concerns that were voiced by Dr.
Fridell, but I realize that, again, if the law enforcement
community doesn't respond adequately and in a timely fashion,
some legislation will be needed.
Senator Sessions. Dr. Fridell, with regard to this prime
facie standard, as you read the legislation now, what kind of
numbers would justify creation--a prime facie standard means
that you can file a lawsuit and you can keep the case in court
simply on a statistical outcome from this data. What kind of
numbers would a plaintiff have to have to justify establishing
a prime facie case to go forward?
Ms. Fridell. Well, I think one of the problems is that it
is certainly not clear. Again, as I said, we do have the
ability--
Senator Sessions. Just exceeding the--
Ms. Fridell. That is what I am afraid will happen, for
instance, people using census data to benchmark their data.
Again, I hope we come up with better measures, but when you are
using census data to compare to your stop data, you are leaving
out all the other things. You are assuming that the people on
the streets are the same as those in the neighborhoods. You are
assuming that driving behavior is the same, amount of driving
behavior is the same, and deployment.
San Diego is a good example. Their first report of data
collection came out using 1990 census data. Of course, they are
an international border city, so how can we assume that the
people on the roads are, in fact, the same as the residents?
Senator Sessions. I hear that Cincinnati and Seattle, which
have gone toward this policy to some degree, have shown a
decline in enforcement in minority neighborhoods. Has anyone
heard that?
Dr. Harris, would you like to comment on that?
Mr. Harris. Yes, Senator Sessions, I have heard that with
respect to Cincinnati, not to Seattle. It is important, I
think, to remember that the great outcry in Cincinnati followed
a situation of civil unrest. But it is also important to know
that Cincinnati was, in the estimation of many, a tinder box, a
kind of accident waiting to happen, that any particular
incident could have set it off.
I spoke in Cincinnati 15 months before the incident that
sparked the riots in a church basement setting. There were
hundreds of people at this meeting on this issue. It is almost
unheard of in that neighborhood-type politics. That indicated
to me that people wanted something done and they wanted it
addressed.
The fact that there has been some pulling back, as it has
been characterized, I think is very unfortunate if that is
true. But I would go back to what Captain Davis said a few
minutes ago. If officers are pulling back and saying it is our
way or the highway, or there is only one way to do this or we
fear doing our jobs, that shows a failure of leadership.
You cannot have a police department that simply says, well,
we are not going to do it, we are not going to go in there;
even though people are getting shot and killed, we are not
going to do it. There has to be a different attitude at the top
so that the people all the way down know that it is not
acceptable to disengage.
Chairman Feingold. Thank you very much. I will start
another round. Perhaps this will be the last one, but I do have
a couple more questions. I would like to go to the issue you
were just discussing.
Professor Harris, Mr. Young and Ms. Fridell criticize the
section of the bill that provides ``the proof that
investigative activities have a disparate impact on minorities
shall constitute prime facie evidence of a violation of this
title.'' They seem to suggest that this would make any
statistical study a weapon in a case against a police
department. But the section says ``proof of a disparate
impact.''
Now, how do you understand that provision will work, and if
you could comment specifically on the effect of this prime
facie evidence standard?
Mr. Harris. The prime facie evidence standard and the idea
of disparate impact evidence is not a new one. It is common in
civil rights law and in employment law. We use this all the
time. There is nothing new about this. Putting this into this
bill in this context simply means that mere allegations will
not suffice. You have to have proof, you have to have a study
that shows clearly disparate impact.
The bill also makes clear by using the phrase ``prime
facie'' that this evidence can be rebutted. Any sufficient
explanation, any kind of contextual explanation would suffice
to rebut it. It is not a mandatory presumption, it is not a
presumption, in fact, at all.
The fact that this is that open-ended is enough to protect
police departments against the feared frivolous litigation. I
just don't think that that would materialize at all because
people know that they not only have to get in court, but they
are going to have put forth that proof that the statute calls
for. Mere allegations would not be enough. To anticipate a
flood of litigation, I think, is greatly mistaken.
Chairman Feingold. Captain Davis, did you want to say
something about that?
Mr. Davis. Yes. I agree with Professor Harris, and I
disagree with the idea about the census data. I think working
with community-based organizations and civil rights
organizations in collecting data in Oakland, the community is
very aware of the variables involved in policing. It is a very
complex job, and so it is not really a tendency necessarily to
take the census data and automatically say that there are
disparities. We do take a look at population density and calls
for service and how officers are deployed.
But when you look at proof of disparity, then all those
variables will be included in that proof. So I don't think it
suggests to me or my colleagues that mere disparate numbers
between the census and the numbers of stops conducted would
constitute prime facie evidence. It would mean that the
statistics, plus possibly allegations from the community, plus
other evidence would establish proof.
So I think we have to step away from census data. It is
just one tool. It is something like the Uniform Crime Report
process we have. It shows us how many Part I offenses are
committed in this country every year, but it does not suggest
how much crime occurs every year. It is one benchmark that law
enforcement can use to see if crime increases or decreases, so
it is one very effective tool.
As a police manager, what I need are tools for effective
management. I need to look at my systems, and it is not about
individuals officers; it is about institutional behavior and
can I track which systems where bias is influencing the
decisions that we make and then coming up with solutions. If I
don't collect the data, I don't know.
Two years ago, most of the people in this room who are now
talking about establishing benchmarks made the argument that
racial profiling was nothing but a perception of the minority
community. They did not accept anecdotal evidence from the
minority community. I am sitting here as a black man and a
captain and I am telling you it exists. I am telling you as a
manager that the data is necessary.
Two years from now, the actual data collection process will
be something that will be part of the day-to-day business and
operations of policing. And I will offer that we will probably
learn more about managerial effectiveness through this data
collection than anything else. Are our tactics working and what
is the cost/benefit of using race and are we using race? So I
think it is the most critical first step to address this issue
of bias-based policing and racial profiling.
Chairman Feingold. Thank you, Captain.
Mr. Henson, you were reacting to Captain Davis. Did you
want to comment on that?
Mr. Henson. Yes, thank you, Senator. I agree fully with
Captain Davis' remarks. I can share with you what we do in the
city of Hayward, and that is reflective of many of my
colleagues that are a part of the National League of Cities as
well.
We do collect the data based on many of the factors as
expressed by Captain Davis. We take that data; it is
computerized. It comes before the local body, which is the city
council, on which I am a representative. We discuss it openly,
we make comments about it. We speak to our chief on the needs
of that data. We enlist the input of all the community members.
This is something that we believe fosters good community
policing. We have never had any problem with getting the
community input into this process. So I agree with him. The
end-all is not simply the collection of data, but it is the
aftermath as well.
Chairman Feingold. Thank you so much.
Senator Sessions, did you have anything further?
Senator Sessions. Chief Greenberg, I read this letter from
Director of Public Safety Jimmy Seaton at Daleville. I also
have a news article here, I believe, from the Seattle paper and
this was the lead paragraph: ``Amid charges of racism, many
Seattle police officers say they are cutting back on the number
of arrests they make in minority communities. Officers still
respond to 911 emergency calls, but cops on the beat are
ignoring many traffic violations and other minor offenses. This
form of passive law enforcement some are calling the cops
tourist in blue is not official policy, but the practice is
growing among individual officers who fear more aggressive
police work will be labeled racial profiling.''
Based on your experience as a grass-roots leader in
promoting cops out on the beat doing their jobs on a daily
basis, is this a concern you have that somehow if we do this
wrong we could do more harm than good?
Mr. Greenberg. Yes, sir, if we go about it in the wrong
way. As I said before, and I hate to repeat myself, but police
officers are going to find out what it is their boss expects of
them on whatever beat they work on anywhere in the city. They
are going to find out what are the number expectations and they
are going to try to meet those number expectations without
imperiling themselves physically and without imperiling their
particular jobs.
There will be officers who are going to back off, as they
have in some of the other States that already have State
legislation that inappropriately addresses this problem. They
are going to figure out a way to be in line with what somebody
somewhere else outside the law enforcement community is going
to expect of them.
Senator Sessions. Now, is it your belief, your passion, as
I understand it, having heard you speak, that the minority
communities of this country deserve as much protection and as
low a crime rate as any other neighborhood in your city?
Mr. Greenberg. That is correct.
Senator Sessions. And when you have a situation where 12
percent of the population is African-American, but 54 percent
of the murders--they are victimized by murders by that high a
rate and the perpetrators tend to be of the same race as the
victims.
Mr. Greenberg. That is correct.
Senator Sessions. Is it a concern that we may be creating a
system here that actually undermines protection for law-abiding
minority citizens?
Mr. Greenberg. That could be one of the results, yes. I
find it very difficult to understand how we could have such
high rates of victimization and not correspondingly have high
rates of police contact to address the needs of those
particular victims with reference to enforcing the law, since
in our country people who are victims of rape or people who are
victims of homicide tend to be victims from their own
community. They are victimized by people in their own
community.
You are not going to be able to have a positive impact on
reducing the amount of high victimization that exists in
minority communities with respect to certain kinds of crimes
without having contact with those minorities in those
communities.
Senator Sessions. Thank you.
Mr. Chairman, I would just say I believe there has been--
and to some degree under the leadership of people like Chief
Greenberg it has been broken down, but there was a subtle form
of racism in America in which police officers just didn't take
it as their responsibility to patrol, protect and defend
minority citizens to the same degree as they did white citizens
from being victims of crime. I think that was a serious
problem.
I think most police departments in America today are doing
a better job of responding to the honest cries of good and
decent people for protection. I think that is one of the
reasons that the crime rate has gone down in America,
Community-based policing focusing on areas where crime is out
of control, bringing it under control, and getting dramatic
improvements and reduction in victimization, which is the
ultimate goal. It is not to put anybody in jail; it is to
reduce victimization so you don't have to punish people.
You are talking about a delicate, sensitive issue that is
difficult to quantify in numerical terms, but is a real issue.
We need to make sure that every American feels, no matter what
their color, that they are going to be treated fairly when a
police officer is up at their door or their automobile. So how
to do it, I don't know, but thank you for your leadership.
Chairman Feingold. Senator Sessions, thank you for your
candor and your taking this issue seriously.
We are about to bring this to a conclusion, but I do want
Professor Harris to respond to this testimony as to the
question of, if this law is passed, whether police departments
will ignore minority areas, leading to the effect that there
will be greater victimization of minorities.
I wonder if you could respond to that, Professor?
Mr. Harris. Yes, sir, I would be glad to. When we talk
about changing the incentive structure and the cues, if you
like, that law enforcement officers respond to, we have to be
aware that there is an existing set of incentives already out
there.
There is no reason that we cannot have enforcement that is
tough and effective, but also respectful. I started that way
and I will say that again. If we have disengagement, if
officers come to feel that they are going to be under the gun
for going into minority communities or doing enforcement in
minority communities, again that represents a failure of
leadership on the level of explaining it to them, on the level
of having it be policy in the department, on the level of
training, all of which are addressed by S. 989 in the best
practices grants.
If we want to have enforcement in our communities that is
effective and that is respectful of people, there is no reason
why we can't have it. There is not a choice between tough and
respectful. We can have both, and we will. Chiefs around the
country are doing that. If there is disengagement, that is a
by-product that has to be addressed. Police have to be told
that it won't be tolerated. As Senator Sessions says, that is a
subtle form of racism, no matter when it occurs and for what
reason. No American should put up with that, and for that
reason this bill is the way to start toward having effective
and respectful treatment for everyone.
Chairman Feingold. Thank you, Professor. I want to thank
everyone. If there are no further questions, I am grateful for
all the time that you have put in and your patience. This has
been a very productive and lively hearing, and I think we all
benefited from the different perspectives that you offered on
this issue. It is my hope that we will work very closely with
the Department of Justice on this legislation and that the full
Committee will mark up this legislation this fall.
Let me just say to all of those who represent law
enforcement organizations that we intend to speak with you,
work with you, and that is exactly what I am already in the
process of doing in Wisconsin, and we will do so nationally, to
address some of the concerns.
Let me note that the record will remain open for additional
submission by the witnesses or for written testimony from other
individuals or groups for 1 week. In addition, I will ask
Senators to submit any written questions that they have for the
witnesses within the same period of time. I, of course, hope
that the witnesses will give us their written responses
promptly.
Again, I thank all of you for coming.
Senator Sessions. Mr. Chairman, could I just offer a letter
from VOCAL, a premier victims rights group in Alabama, signed
by Executive Director Miriam Shehane, relating to this
legislation.
Chairman Feingold. Without objection.
The hearing is adjourned.
[Whereupon, at 1:06 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union
Washington, D.C. 20002
July 31, 2001
Senator Russell Feingold, Chairman
Constitution Sub-Committee
Senate Judiciary Committee
5116 Dirkson Senate Office Building
Washington, DC 20510
Dear Senator Feingold:
We are writing in support of S. 989, ``The End Racial Profiling Act
of 2001.'' We appreciate the leadership you have shown on the issue of
racial profiling.
Racial profiling is not a new problem. However, it has only
recently garnered the type of public attention that it deserves.
Unfortunately, since the issue has come to light, the federal
government has been sluggish in acting. This landmark legislation is a
necessary first step to developing a comprehensive response to racial
profiling.
First, the bill defines racial profiling, and bans it. While most
people agree that racial profiling is wrong, some disagree about how it
should be defined. A federal definition would ensure that people
traveling throughout the country know what to expect whether they are
in Oklahoma or Maryland or another state. The bill also creates a
limited right for individuals who have been victimized by racial
profiling to go to court to seek injunctive or declaratory relief. It
does not authorize money damages against police departments that have
engaged in racial profiling.
More importantly, the bill gives the Attorney General the authority
to establish categories of information to be collected on law
enforcement encounters in order to determine whether racial profiling
is occurring. The ACLU believes that data collection must be an
integral part of any serious effort to address racial profiling. Those
who claim that racial profiling is a problem, and those who disagree,
will use anecdotes to make their arguments. Only careful data
collection and analysis of data can provide the information necessary
to assess whether there is a problem, and the extent of any problem
that is identified.
Data collection is also a vital tool that can help the management
of a law enforcement agency track potential problems and focus limited
resources on effective responses. Data collection can also help a
police department demonstrate to minority communities that the police
department is responding to the concerns of the communities.
While the bill requires data collection and bans racial profiling,
it also allows for needed flexibility. For example, it gives the
Attorney General discretion to decide what types of data will be
collected, and the discretion to decide whether a law enforcement
agency that has failed to address racial profiling should lose any
federal funding. The bill also establishes a grant program to help law
enforcement agencies implement data collection and other types of best
police practices.
Lastly, this bill has significant law enforcement support. The
Alliance of Minority Law Enforcement Agencies, which includes every
minority law enforcement organization in the country, supports the
legislation. The bill has support from non-minority law enforcement as
well.
Sheriff Robert A. Ficano of Wayne County Michigan endorsed the
legislation at a press conference introducing the bill. Sheriff Ficano
put it best when he said, ``Racial profiling is not a legitimate tool
for law enforcement. It is not only unconstitutional; more importantly,
it is wrong. Law enforcement should work together to end a practice
that casts a large shadow over public trust. Racial profiling is deeply
corrosive to police and community relations.''
Attached to this letter is an Executive Summary to a report that we
will be releasing this fall. Please feel free to include this letter
and the Executive Summary in the record of the hearings on this
legislation.
Sincerely,
Laura W. Murphy, Director
Washington National Office
American Civil Liberties Union
Rachel King, Legislative Counsel
Washington National Office
American Civil Liberties Union
Additional Statement of Laura W. Murphy, Director, American Civil
Liberties Union, Washington, D.C.
An Overview and Recommendations
In June 1999, the American Civil Liberties Union issued our first
report on racial profiling, entitled ``Driving While Black.'' At that
time, most of the American public had never heard the term ``racial
profiling'' or its derisive nickname, ``driving while black or brown.''
And although the police practice of targeting African-American and
Latino drivers for traffic stops and searches was all too well known in
minority communities, there was little hope or expectation in those
communities that the problem would ever be addressed.
Two years later, the ACLU is preparing a second report on racial
profiling, which will be released in the fall. The new report will
discuss the progress that has been achieved in the fight against racial
profiling as well as the obstacles that remain, and will make specific
recommendations for eradicating this scourge. Above all, the report
will urge lawmakers to pass federal legislation that clearly defines
and outlaws racial profiling in all contexts and in every state.
Much has changed in the two years since we issued our first report.
Polls now show that a majority of the American public is aware of, and
disapproves of, racial profiling. Nine states have passed effective
legislation addressing the problem. Many police departments have
voluntarily begun collecting data on traffic stops in an effort to
determine whether their officers engage in racial profiling. A powerful
bill that would ban racial profiling has been introduced in Congress.
And President Bush, Attorney General John Ashcroft, former President
Clinton, and many other prominent officials have spoken out against
racial profiling.
This is the good news. Yet racial profiling remains a fact of life
in America. Lethal encounters in which unarmed black or brown people
are shot and killed by white police officers grab the media spotlight
and shock the public--as well they should. But for every headline-
worthy horror like these, there are thousands of other everyday horrors
that are unknown by all but their victims: ordinary, law-abiding men
and women who are systematically harassed and sometimes physically
intimidated by the police simply because of their ethnicity or the
color of their skin.
Moreover, although many public officials now admit that racial
profiling exists, few have the courage to publicly confront the larger
context in which it occurs, or the invidious role it plays in our
national life. Politicians find it difficult to acknowledge that racial
profiling is but the first step in an inexorable process, justified by
the so-called war on drugs, that feeds a swollen prison population that
is overwhelmingly black and brown.
Racial profiling is a self-fulfilling prophecy based on erroneous
racial stereotypes about who uses and sells illicit drugs. When the
American public, including the police, look at who is in prison, they
see a sea of black and brown faces and assume that people of color are
responsible for most of the drug-related crime in America. This
assumption is used to justify racial profiling, and the beat goes on.
This assumption, however, is false. Every comprehensive study of
racial profiling has revealed that, in fact, people of color are no
more likely than whites to be carrying drugs or other contraband in
their vehicles. Indeed, the Department of Justice's 1999 national
survey of Contacts Between Police and the Public found that
``[s]earches of white drivers and their vehicles were more likely to
find criminal evidence (17%) than searches of blacks (8%).''
Yet because African-Americans and Latinos are targeted, stopped,
and searched at grossly disproportionate rates, they are also arrested
and incarcerated at grossly disproportionate rates. The former New
Jersey Attorney General dubbed this phenomenon ``the circular illogic''
of racial profiling. Law enforcement officials often point to the
racial composition of our prisons and jails as a justification for
racial profiling, yet the racial makeup of those behind bars is itself
largely a product of racial profiling.
Police officials typically justify racial profiling programs with
the claim that they target African-American and Latino neighborhoods
and cars because ``that is where the drugs are.'' But in truth, study
after study shows that whites and nonwhites alike use and traffic in
illegal drugs at rates that roughly match their percentages in the
general population. So, for example, African-Americans make up 13% of
the population and, according to the government's own best statistics,
they constitute 15 to 20% of the nation's illicit drug users. Yet, they
are 74% of those imprisoned for drug possession. The disproportionate
number of people of color who are caught with drugs reflects not who
uses or sells drugs more, but who is stopped and searched for drugs
more.
A matrix of government policies and practices conspires to
perpetuate the over-incarceration of black and brown men, and the
terrible effects are now all too familiar. The Sentencing Project,
which tracks and analyzes criminal justice statistics, calculates that
almost one in three (32%) of black men ages 20-29 are incarcerated, on
probation, or on parole (as compared to one in 15 white men of the same
age range). This has had a devastating impact not only on hundreds of
thousands of individual lives, but on minority families and
communities.
Much less notice, however, has been paid to the crucial role that
racial profiling has paid in producing these statistics. Police
officers who assume that black and brown drivers are carrying drugs,
and who therefore engage in racial profiling, cast the massive dragnet
that plucks people off the highways and streets and drops them into the
criminal justice system.
Although traffic stops and searches are the form of racial
profiling that has received the most media attention, profiling takes
place off the roadways as well. Black and Latino pedestrians,
particularly in certain neighborhoods, are regularly stopped and
frisked without reasonable cause. Customs officials at international
airports systematically target members of certain racial and ethnic
groups, particularly black women, for intrusive and degrading personal
searches, based on the false assumption that they are more likely to be
transporting drugs.
Recent statistics from the New York District of the Immigration and
Naturalization Service reveal that, for years, the INS has engaged in
racial profiling as well. INS agents systematically single out Latinos
in workplace raids, and 95 percent of people arrested by the INS-NY are
from Mexico, Central America, and South America--a figure grossly
disproportionate to the demographic makeup of the area's population of
undocumented aliens.
Moreover, the ACLU is aware of incidents in which black boys on
bicycles have been stopped and harassed by the police for being ``in
the wrong neighborhood,'' and in which black teenagers have been
singled out on the basis of their skin color, and falsely accused of
crimes committed in swimming pools.
Nor are blacks and Latinos the only groups that are subjected to
such stereotyping and abuse by law enforcement officials. For example,
people who have studied the prosecution against Wen Ho Lee, a
government scientist who was accused of espionage-related crimes and
treated far more harshly than was appropriate or necessary--and against
whom most of the charges were eventually dropped--believe that he was
singled out because he is foreign-born and of Asian ancestry.
The sad fact is that although much progress has been made in the
United States to eradicate official discrimination, racial profiling
and the racist assumptions that underlie it are deeply imbedded in
America's culture, and particularly in police culture. Not all police
are racist, and not all view every black or brown driver as a suspect.
But because racism is so pervasive and so entrenched, even ``good''
officers may harbor unconscious racial stereotypes. That is why the
mechanisms that foster racial profiling--pretext stops, consent
searches, and any other practices that give police broad discretion to
stop and search drivers despite little or no reason to suspect criminal
activity--must be banned through federal and state legislation. Such
legislation must clearly define, and explicitly outlaw, racial
profiling.
Even with the passage of strong legislation banning racial
profiling, however, eradicating it will be no easy task. Major hurdles
remain, and more will appear as the inevitable backlash movement
builds. Already, several conservative commentators have published
articles in the press reasserting the false claim that racial profiling
is necessary and appropriate to stop the flood of drug-related crimes
by blacks and Latinos.
In addition, two recent decisions by the United States Supreme
Court--in Atwater v. City of Lago Vista and Alexander v. Sandoval--pose
new obstacles to reform. The Atwater decision gives police the power to
arrest and search people--and in many instances to jail them--for even
the most minor infractions, even if only a fine would result if there
were a finding of guilt. The Sandoval decision limits plaintiffs'
ability to use Title VI of the Civil Rights Act of 1964, which has
formed the basis for many racial profiling lawsuits, to seek redress
for discrimination.
Moreover, several state legislatures recently have either failed to
enact proposed legislation aimed at ending racial profiling, or have
watered the bills down until they are virtually powerless.
These hurdles may slow, but they will not stop, the essential civil
rights struggle of our time----the fight to end racial profiling and
the discriminatory mass incarceration of a generation. This struggle is
as crucial and historic as the fight to end segregation was in the
1950s and `60s. As segregation did in its day, racial profiling assigns
second-class citizenship based on race, and perpetuates a racist system
in which whites can move freely in society, but people of color cannot.
Rather than being forced to live on the ``other'' side of town, black
and brown citizens are targeted, searched, and swept off to prisons on
the basis of race. This new system of segregation appears race-neutral,
and the rationale seems well intentioned: fighting drugs and crime.
Yet over the past two decades, the war on drugs has revealed itself
to have little to do with solving the problem of drug abuse, and much
to do with targeting communities of color for mass incarceration. This
new form of discrimination and segregation does not only affect the
guilty. Thousands of innocent, law-abiding people of color, who are
simply trying to live a successful, decent life, find themselves
stranded by the side of the road, fielding questions about imagined
drug-related crimes, terrified that they too may find themselves swept
into the criminal justice system because of the color of their skin.
The ordeal often begins with a simple traffic stop.
We must put an end to racial profiling forever. We call on every
Member of Congress to join us in this crucial and historic fight.
There can be no question that, since the ACLU released our first
report on racial profiling two years ago, much of the American public,
many police departments, and government officials at every level have
become aware of and now oppose the practice of racial profiling.
``Racial profiling'' and ``driving while black or brown'' are now
household words in white as well as black and Latino communities.
Newspapers routinely report new revelations of racial profiling. Town
meetings on racial profiling are packed with citizens in neighborhoods
nationwide. An estimated 400 police departments across the country have
acknowledged that racial profiling may be a problem among their
officers and have taken steps to address it. Nine states--North
Carolina, Connecticut, Rhode Island, Tennessee, Kansas, Washington,
Massachusetts, Missouri, and Maryland--have passed legislation that
addresses the problem by requiring police to collect data on traffic
stops, and many more states are expected to do so this year.
Moreover, recent polls show that most of the public is now aware of
racial profiling, believes it is wrong, and wants it to stop. A Gallup
poll taken last year found that 81 % of Americans now reject racial
profiling as wrong, and that 59% (including 56% of white respondents)
believed it was taking place on a ``widespread'' basis.
In the past two years there have been some important victories in
the war on racial profiling. For example, the California Highway Patrol
announced in April that it is placing a moratorium on ``consent
searches,'' which have been a major factor in racial profiling in
Northern California. Although the police commissioner denies that
racial profiling is a problem among his officers, the ban on consent
searches is an extremely positive step toward ending discriminatory
police practices.
In another surprising and encouraging development, new statistics
show that traffic stop searches have dropped dramatically along the
southern New Jersey Turnpike, a notorious stretch of highway that has
become a national symbol of police misconduct. Although the figures
indicate that minority drivers are still disproportionately searched
there, the drop in searches is good news and an encouraging sign that
New Jersey's police may be changing their ways.
Despite this very real progress, however, there is still a very
long way to go. The national disgrace of racial profiling is still a
reality that subjects people of color all across America to systematic
harassment and abuse by the police every day. Although some localities
now voluntarily collect data on traffic stops, and some states have
passed valuable legislation, in most parts of the country no steps have
been taken to combat racial profiling, and this illegal practice is
allowed to continue--despite the fact that ignorance, skepticism, and
denial no longer serve as excuses.
Racial profiling and the attitudes and assumptions that lead to
discriminatory traffic stops and searches, permeate our entire society,
and lead to similar abuses in a range of other contexts. In April, the
city of Cincinnati was under nighttime curfew for five days following
disturbances that arose after a white officer shot an unarmed black
man.
This tragic killing, whose particulars--including the policeman who
claims to have thought the victim was reaching for a gun--have become
painfully familiar, reflects the prejudice and the lack of restraint
that fuel racial profiling and enable it to continue.
Data Collection: The Road to Reform
Data collection--documenting who is stopped by police and what
happens during each stop -has proven to be an extremely valuable weapon
in the war against racial profiling. It convinces the public and the
police that racial profiling is occurring, and offers some insights
into who is engaging in the practice, and where it is taking place.
Police departments across the country are now compiling data on whom
they stop on the highways, for what reasons, how those drivers and
passengers are treated, and the outcome of each stop. Some agencies
have undertaken the data collection voluntarily, others have been
required by legislation to do so, and still others are complying with
the terms of a settlement agreement achieved through a lawsuit.
The data collection efforts that are now underway vary considerably
in thoroughness and value. Some are perfunctory, with officers required
to record only the most basic information, and are in effect only for a
short period. Others require completion of a detailed, highly specific
questionnaire and are in effect indefinitely.
Despite the lack of consistency in the data collection process,
virtually all police department's data that have been collected thus
far reveal that nonwhite drivers are stopped and searched far more
often than whites, and far out of proportion to their numbers and
percentages on the roads. The data also refute the claim that nonwhite
drivers are more likely than whites to be involved in drug-related
crimes--the claim that police and others typically make in order to
justify racial profiling.
These data are extremely valuable. They persuade the public that
racial profiling is a serious, widespread problem that must be
addressed. And they force police departments to face up to their own
complicity and lead them to implement reforms. Moreover, police
departments that begin collecting data and show that they take the
findings seriously build trust and cooperatoin among their communities,
which in turn helps them to be more effective at fighting crime.
Police departments in at least 25 of the largest 50 cities in the
United States have now implemented or have publicly agreed to implement
data collection programs--and nearly three quarters of these agencies
have made that commitment voluntarily. This is to be applauded. Yet
most of the nation's major urban police departments still have not
taken action. Fifteen or more state police agencies now have traffic
stop data programs, but most state police agencies do not.
And while hundreds of agencies are now addressing racial profiling
with data collection--and that is hundreds more than when the ACLU's
first report on this issue was released--the current best estimate is
that more than 90% of the nation's law enforcement agencies have not
yet acted. Clearly, this figure must decline if further progress is to
be made.
Search Data: The Real Story
As useful and necessary as it is to collect data on traffic stops,
collecting and analyzing data on searches that result from those stops
is even more crucial. Statistics on what happens after cars are
stopped--how drivers and passengers are treated by the police--are
often more revealing, and more racially disparate--than the traffic
stop data themselves. Search data should be analyzed according to the
races of drivers who were searched, and what, if anything, was found.
It is virtually always possible for the police to legally justify a
traffic stop, since all drivers are almost certain to violate minor
traffic laws. But searches tell more about police behavior. Most car
and driver searches are ``by consent''--that is, they are not
undertaken because a police officer sees something that constitutes
probable cause, or because there is a warrant out on the driver. Thus
the search data are a good indication of how police are exercising
their discretion.
For example, figures that were released by the federal government
in March 2001, as part of the Police Public Contact Survey, show that
black and white drivers were not stopped in dramatically different
numbers. The report's figures on searches, however, tell a different
story. The racial disparity for searches is far more marked than that
for stops. Moreover, a lower percentage of nonwhite drivers were found
to have illegal drugs in their cars, contradicting the common belief
that blacks and Latinos are more likely to have drugs.
But many traffic stop searches are more than simply useless: they
are often a form of terror meted out disproportionately on black and
Latino drivers. At the New Jersey hearings on racial profiling held in
the spring of 2001, a state trooper testified that some state troopers
bully minority motorists into allowing them to search their cars, even
when there is little or no reason to suspect them of carrying drugs or
weapons. He also said that black and Latino drivers are well aware that
when they are asked to give consent to a .search, they had better say
``yes.''
``Consent'' searches give abusive officers an easy excuse to
mistreat innocent drivers, especially nonwhite drivers. They do nothing
to further the prevention of crime. And they prove (as if any proof
were needed) the necessity of the Constitution's Fourth Amendment ban
on unreasonable searches and seizures.
Litigation: Another Road to Reform
Litigation has been a powerful weapon in the war on racial
profiling. Since our first report was released, we have achieved
important progress in several key lawsuits, and new cases have been
filed by the ACLU and other groups across the country. Successful
lawsuits can lead to settlement agreements or consent decrees that
compel police departments to begin data collection and to discontinue
discriminatory practices. Most recently, the chief of the California
Highway Patrol announced a moratorium on consent stops throughout the
state. Although he denies that the ACLU's lawsuit in California was a
factor in the decision, it appears that the litigation did, in fact,
play a role.
Of course, not all litigation results in a favorable ruling. The
1996 Supreme Court decision in Whren v. United States has become a
considerable roadblock to lawsuits challenging racial profiling. In
Whren, the Court ruled that police may use a traffic violation to
justify a traffic stop, even if their real purpose for the stop is to
search a vehicle. The Court concluded unanimously that such stops do
not violate the Fourth Amendment, which prohibits unjustified searches
and seizures. The Court said, however, that challenges alleging
selective (i.e., racebased) enforcement of the law may be brought under
the Equal Protection Cause of the Constitution. Such challenges have
resulted in several highly effective rulings.
The two recent decisions by the Supreme Court, in Atwater v. City
of Lago Vista and in Sandoval v. Alexander, are also likely to make it
considerably more difficult to address the harms of racial profiling.
The Sandoval decision, which does not directly address police
practices, says that in cases based on Title VI regulations of the
Civil Rights Act of 1964, it is no longer sufficient to show that
police practices have a discriminatory impact; plaintiffs will now be
required to show that they also have a discriminatory intent. This is
sometimes, but not always, possible to demonstrate. Title VI
regulations have been an important tool in challenging racial
profiling. The Sandoval decision, by blunting that tool, raises the
prospect that, in some cases, racial profiling practices that have a
clearly discriminatory impact may now be allowed to continue.
The Atwater decision, which does address police practices, ignores
the reality of racial profiling and virtually encourages and invites
the police to stop, search, and even jail people with little or no
reason to suspect them of crimes. This extremely dangerous ruling flies
in the face of all the evidence that has been gathered in recent years
about the need to limit police discretion and to take steps to reduce,
rather than expand, individual officers' ability to target and harass
drivers. It too will make it more difficult to bring and win racial
profiling lawsuits.
The DEA and Operation Pipeline: The Road to Racial Profiling
As the ACLU pointed out in our 1999 report, much of the blame for
the country's racial profiling problem stems from the so-called war on
drugs. In the name of this ``war,'' the DEA `s Operation Pipeline
program has trained tens of thousands of the nation's police officers
in the use of pretextual traffic stops in a ``needle in a haystack''
hunt for drugs among the overwhelmingly innocent driving public.
The stops that are made, while based on minor traffic violations,
have nothing at all to do with traffic safety concerns. These stops,
and the searches that often result, are based on the idea that it's
appropriate and ``worth it'' to detain large numbers of innocent people
in the hope of catching the guilty few who may be transporting drugs.
As all the data reported to date confirm, officers involved in
these operations stop, inconvenience, and sometimes terrify far more
innocent than guilty people. That's because, as one might expect, there
is no correlation at all between committing minor traffic offenses -
failing to signal a lane change, drifting a few miles above or below
the speed limit, driving with overly worn tire treads, etc.--and a
propensity to act as a drug courier or ``mule.''
If the police can stop anyone and everyone, the question becomes
whom they are more likely to stop and/or search when their motivation
has nothing at all to do with traffic safety and everything to do with
guesses and hunches about who may be transporting drugs. Thus engaging
in this type of law enforcement by hunch invites officers to rely on
racial and ethnic stereotypes.
In fact, the DEA has not only permitted police officers to rely on
stereotypes--it has taught them to do so. Training materials produced
by the DEA and distributed to police departments across the country
include specific characteristics of drivers to be targeted for stops
and searches. These descriptions, the materials claim, serve as tip-
offs as to who is likely to be transporting drugs.
It is therefore no surprise that litigation research, news
accounts, and various investigations, have shown an obvious correlation
between serious racial profiling problems and the presence of local
Operation Pipeline activities. In state after state, in all regions of
the country, high levels of racial profiling consistenly reflect
Pipeline tactics and operations. In New Jersey, Maryland, North
Carolina, Florida, Oklahoma, Colorado, Utah, California, and elsewhere,
the connection is too clear to be ignored.
The DEA now claims to have eschewed racial profiling, and its
official position is that ``the best profile is no profile.'' This is
surely a step in the right direction. Yet without data the DEA is blind
as to how its training is really being used. And without data, the DEA
cannot determine how tens of thousands of officers who were trained in
Pipeline techniques in years and decades past--when racial profiling
was accepted and even advocated by the DEA--are behaving on the
highways today.
Putting an End to Racial Profiling
Racial profiling is a deeply imbedded problem whose roots lie in
the complex, racist stereotypes and assumptions that infect our entire
society. Eradicating it will therefore require a determined and long-
term effort. Nevertheless, a number of straightforward and simple steps
that can and must be taken immediately will make an enormous difference
in that effort.
pass federal legislation
First and foremost, federal legislation must be passed that clearly
identifies and outlaws racial profiling in every context, by every
agency and police department, in every state and locality in the
nation. The ACLU vigorously advocates passage of the End Racial
Profiling Act. This bipartisan bill contains the essential elements
that would require all police departments and federal agencies to stop
engaging in racial profiling and to implement measures to help prevent
the use of profiling. ;It requires police departments to collect data
on all types of law enforcement encounters and requires the attorney
general to report regularly to Congress on these data.
ban pretext stops and consent searches
Pretext stops and consent searches, as explained above, are the
mechanisms that make possible and perpetuate racial profiling. These
mechanisms allow police to stop and search people and vehicles despite
a lack of evidence of criminal activity or illegal substances. Because
these practices give individual police officers the power to base stops
and searches on hunches, assumptions, and baseless suspicion, they are
responsible-for the disproportionate stopping and searching of African-
Americans and Latinos.
Pass legislation in every state.
It is heartening that, in the two years the ACLU issued our report
on racial profiling, nine states have enacted legislation addressing
racial profiling through data collection. Legislation which explicitly
outlaws racial profiling and requires data collection and reporting
should be passed in every state in America.
end racial profiling in justice department drug interdiction programs.
The U.S. Department of Justice claims that Operation Pipeline and
other drug interdiction programs no longer teach officers to rely on
racial profiling in an effort to identify drug-related criminals.
This is an encouraging development, but it is not enough. The
Justice Department should require all its agencies to collect and make
public data on traffic stops and searches, as well as searches in
airports and other non-highway contexts. Funding should be withheld
from agencies that fail to conduct data collection programs and that do
not implement programs aimed at eliminating racial profiling.
encourage data collection by every major city.
Many cities and localities across the country have voluntarily
implemented data collection programs. We applaud these police
departments and call on every police agency in the nation, especially
those in major cities, to undertake data comprehensive, ongoing data
collection efforts.
Racial profiling is the most recent manifestation of the racism and
segregation that have plagued our nation since its founding. The fight
to end it is the most important civil rights struggle of our time. We
urge Members of Congress not to miss the opportunity to take part in
this historic struggle. Please vote to end racial profiling in America.
For additional copies of this report, please contict the ACLU's
Washington National Office:
Statement of Karen Murphy-Smith, Angela Davis Cop Watch and the
Campaign Against Racial Profiling, Milwaukee, Wisconsin
Hello, I'm Karen Murphy-Smith, a human rights/prison reform public
policy activist, and head of the Milwaukee based Angela Davis Cop Watch
and the Campaign Against Racial Profiling (CARP) organization.
The Angela Davis Cop Watch and Campaign Against Racial Profiling is
a citizen action group dedicated to raising public awareness and ending
racial profiling. Racial profiling is any police initiated action that
relies upon the race, ethnicity, or national origin of an individual
rather than behavior of that individual, or information that leads the
police to a particular individual who has been identified as being
engaged or having been engaged in criminal activity.
We are comprised of citizens who believe that fighting crime is of
the highest priority as long as it is done without violating citizen's
fundamental rights and further eroding the public's confidence in law
enforcement. We differ from other cop watch models where members take
to the street with police/citizen interaction. Instead, we've adopted a
research and development model that affords us the opportunity to lobby
for reform and law enforcement accountability through the legislative
process. (For further information visit [email protected])
Fortwo years our organizations have led the charge to end all forms
of racial profiling in Milwaukee and throughout Wisconsin in the areas
of.
Driving While Black or Brown (DWB)--the practice of stopping,
searching, and or detaining a motorist based on his or her
race, ethnicity, gender, or station-in-life.
Walking While Black or Brown (WWB)--the practice of stopping,
searching, or detaining a pedestrian based on his or her race,
ethnicity, gender, or station-in-life.
Running While Black or Brown (WWB)--the practice of stopping,
searching, detaining, and or arresting a pedestrian who is in a
``high crime area'', because he or she broke into an unprovoked
run at the sight of law enforcement of officials.
Shopping While Black or Brown (SWB)--the practice of detaining
and searching a commuter based on his or her race, ethnicity,
gender, or station-in-life.
Flying While Black or Brown (FWB)--the practice of detaining
and searching a commuter based on his or her race, ethnicity,
gender, or station-in-life.
Hailing a Cab While Black or Brown (HACWB)--the practice of
avoiding to stop or acknowledge individuals of a specified
race, ethnicity, gender, or station-in-life who hail a cab,
based on a profile of descriptive attire and stereotypes.
According to social scientist, Henry Lefebvre, ``a revolution takes
place when and only when, in such a society, people can no longer lead
everyday lives. . .'' Such is the case with scores of African-Americans
and other minorities--including prominent athletes, members of
Congress, actors, lawyers, policemen, clergy and business leaders who
have experienced the humiliation of being stopped on our nation's roads
for no other reason than the alleged traffic offense referred to as
``DWB''.
In November of `99' we successfully lobbied the City of Milwaukee
Common Council and Milwaukee Mayor John Norquist to sign into law a
bill that requires the Milwaukee Police Department (MPD) to extract
racial data from police records for quarterly publication by our
citizen's review panel the Fire & Police Commission.
In Milwaukee Blacks and Minorities received three of every four
municipal tickets. Blacks and Minorities were 38% of the
population, but received 75% of non-traffic and 70% of traffic
citations from Oct. 25, 1998 through Oct. 25, I999.
A recent Milwaukee Journal Sentinel Newspaper analysis of 147,000
``quality of life'' municipal citations issued between October 25, 1998
and another 122,913 ``Zero tolerance'' and ``area specific policing''
citations revealed that these strategies have ``had a disparate impact
on the poor and on blacks because most tickets--even for violations
like jaywalking and speeding--are given to ethnic minorities in low-
income, higher crime neighborhoods.'' (Source: Milwaukee Journal
Sentinel ``Policing or Profiling?'', by Dave Umhoefer, 6/18/2000.)
On March 6, 2001 Governor Scott McCallum issued Executive Order No.
1 ``Relating to the Findings of the Governor's Task Force on Racial
Profiling.'' Executive Order No. 1 requires all law enforcement
agencies in the State of Wisconsin to:
1) Enact a policy prohibiting the practice of racial profiling.
2) Implement the recommendations authored by the Governors Task
Force on Racial Profiling without delay.
3) Identify the means necessary to implement the recommendations in
cooperation with their communities.
The Task Force's mission was to study whether and to what extent
there exists a pattern and practice of law enforcement stop based on
racial profiles; to determine and examine public perceptions on this
issue; to collect and analyze data; and to explore solutions and make
recommendations to the Governor and other appropriate entitles. The
task force chaired by Judge Maxine Aldridge White was comprised of law
enforcement officials, the defense bar, state legislators and community
leaders who found that racial profiling erodes the public's confidence
in law enforcement that racial profiling is a nationwide issue; that
there is anecdotal evidence that racial profiling occurs in Wisconsin;
and that without emprircal data we will be unable to determine the
extent of the racial profiling problem in Wisconsin.
We're currently corresponding with law enforcement agencies
throughout the State In order to secure copies of policies prohibiting
the practice of radial profiling. And will hold a news conference in
the near future publishing our findings.
We also stand with and join our own--Wisconsin Senator Russ
Feingold and Michigan Representative John Conyers in doing the right
thing supporting (S. 989 and H.R. 2074). We can only now pray that
president George W. Bush will follow suit.
Statement of Kabzuag Vaj, Co-Founder of Asian Emancipation Project,
Madison, WI
Police Profiling in (Hmong) Southeast Asian Communities
The recent attention to racial profiling has increased the
awareness of the unconstitutional practice of law enforcement officers
profiling, targeting, and harassing people of color, specifically,
African Americans. Throughout the United States, people of color who
are stopped and ticketed by police without justification are filing
class action lawsuits, seeking to represent other people of color who
alleged that they were also stopped on the basis of their racial/ethnic
background. Although, many national and local agencies are working hard
to eliminate and protect victims of police profiling, the focus is
mainly on the African American community.
Police profiling is not partial to only African American
communities. Today, in Madison, WI, the color of your skin makes you
more likely to be stopped, searched, arrested and imprisoned. Wisconsin
has been home to the one of the largest Southeast Asian refugee
populations for over three decades. Currently, there are approximately,
49,000 Southeast Asians in Wisconsin, and as the population grows many
new challenges arise. Traditionally, Southeast Asians have a great deal
of respect for authority figures, this makes it hard for them to
believe that officers of the law would have any reasons to harass their
community, therefore, it is difficult for the elders to understand and
acknowledge police harassment and profiling. One of the most
controversial issues within the Southeast Asian community is the
incarceration and police profiling of our young men and women.
An increase in police contact with the Southeast Asian community is
not a result of an increase in gang activities and drug trafficking by
community members. Myths, such as this one, only aim to further
disempower and delegitimize Southeast Asians who are profiled on a
consistent and systematic basis, and to justify law enforcement
officers' unequal implementation of the law for people of color. The
reality is that many of these unnecessary and inappropriate encounters
occur because of police profiling. Studies have shown that there is no
correlation between race and likelihood to commit a crime. In other
words, people break the law roughly in proportion to their population.
Many Southeast Asians profiled by police officers have been
harassed from a very young age, thus, they do not have the adequate
resources and knowledge to defend themselves from police officers who
abuse their power in an attempt to control the community they should be
serving and protecting. Racial Profiling is systematically destroying
the foundation of many communities of color, the destruction of the
family unit, because of disproportionate incarceration rates of men of
color and rising incarceration rates of women of color, causes
fragmented families, single parent household, and unnecessary financial
burden. The cultural, educational, and economic ramifications of racial
profiling in Southeast Asian communities are devasting. Racial
profiling of Southeast
Asian's result in arrest, conviction, and incarceration, which in
return criminalizes the community, disrupts family unity and creates
lost of face, mistrust, tension and violence between family members. In
addition, the Southeast Asian community must deal with immigration
issues, and face deportation back to countries their families fled, as
refugees, three decades ago, in fear of persecution. According to The
Southeast Asia resource Action Center (SEARAC), a national civil rights
organization committed to the advancement of Southeast Asians, as of
February 21, about one-third of all long-term detainees were from
Southeast Asia.
For example, a Hmong teen who is constantly profiled by police will
be viewed as a criminal in his community, and bring his family
humiliation and lost of respect and face. His father in response will
put demands on the mother, who is responsible for the up brining of the
child, in reaction to that, the mother will pressure the child. To
avoid public criticizism and humiliation, many families resort to
violence. In many instances, the father become depress and suicidal
because he is unable to control the situation. The challenges in
dealing with racial profiling in Southeast Asian communities are
complex, therefore, without further resource and education, the
consequences of racial profiling has contributed to many social,
economic, familial and emotional problems.
1. testimony by c. vang (interviewed april 2001)
C. Vang is 23 years old and has lived in Madison, WI all his life.
His first encounter with the Madison police department occurred in
1990, when he was 12 years old. While walking home from school, he was
stopped and searched by an officer who alleged that C. Vang had stolen
something from a nearby store. After searching C. Vang and finding
nothing, the officer let him go, and apologized for misidentifying him
for someone else. C. Vang and his family did not report this to the
police department or file a compliant. C. Vang's family did not know
that they could report this incident and they believed the police
department would not do anything about it.
In 1992, at age 14, C. Vang and his friends were once again,
profiled by the police department. While driving in Madison, C. Vang
and 2 of his Laotian friends were ordered by five to eight police cars
to pull over. Upon parking on the side, eight to ten officers
surrounded the car with guns pointed at the teens. By gunpoint, the
teens were ordered to step out of the car and lay flat on the ground,
while the other officers searched the car. When the teens asked why
they were being stopped and held at gunpoint, the officers replied that
they were looking for a gun. After searching the car, only a wheel lock
club was found (read: no gun was found). Once again, C. Vang and his
friends did not report the incident to the police department or file a
compliant against the officers.
From 1981 to 1996, C. Yang lived in a low-income neighborhood,
where there were community police and security guards policing the
community 24 hours a day 7 days a week. In the years when he lived in
this community, C. Vang was stopped and questioned by officers on
several other occasions; officers would stop him just for looking their
way or even just smiling at them. They said his smile was intimidating
and his look was insulting.
C. Vang has been threatened by Madison police officers on numerous
occasions. While visiting his older brother, C. Vang was stopped by an
officer and asked what he was doing in the neighborhood. Then the
officer told C. Vang that the police department had their eyes on C.
Vang and that one day they would catch him doing something wrong. In
April of 2001, while visiting his older brother again, a police officer
approached C. Vang and told him that he was no longer permitted to
visit his brother, because the department had barred him from entering
that community. When C. Vang asked why, the officer said that they know
C. Vang had committed vandalism in that community and therefore, was no
longer allowed to enter the community. Although, C. Vang was accused of
a crime and prohibited from entering that community there was no ticket
given and no arrests, just more threats. No other reasons were given
for outlawing C. Vang from visiting his older brother. C. Vang has not
filed a compliant against the department yet.
2. testimony by j. vang (interviewed april 2001)
J. Vang is 21 years old and has lived in Madison, WI all his life.
In April 2001, J. Vang, his brother, and two Hmong friends went to
Mc Donald's for lunch and ended up with two disorderly conduct tickets.
After being mistreated and disrespected by the manager at the local
fast food over a request for more barbecue sauce, J. Vang and his
friends ate their meals in the restaurant, while the manager called the
police. Instead of investigating and speaking to both parties, the
police officers order the Hmong men to leave the restaurant and cited
two of the young men with disorderly conduct tickets. The manager was
not ticketed, and no complaints were filed.
3. testimony by f. xiong (interviewed april 2001)
F. Xiong is 21 years old and has lived in Madison for 10 years.
Since November 2000 to April 2001 F. Xiong has been stopped four
times while driving by police officers. F. Xiong is stopped and
questioned about the same issues: the color of his headlights, tail
lights, and break lights and how his lights are either too pearl white,
too yellow, too bright, or not bright enough. All four times, police
officers asked all the people in the car to provide identification, and
conducted background checks on all of them. Police officers never cited
F. Xiong with a ticket, but aimlessly threatened and warned him. No
complaints were filed.
In April 2001, a neighborhood officer told F. Xiong he could not
stand his car in a prohibited area, although there were no visible
markers against standing a vehicle. F. Xiong questioned the officers,
and they in turn threatened to take F. Xiong downtown for disorderly
conduct. At the same time, without his permission, the officer and his
partner attempted to open F. Xiong's car door to search his car. F.
Xiong told them that he did not consent to the search and that the
officers had no reasons and grounds to search his car. The officers
left after several other community members verbally agreed with F.
Xiong. No ticket was given, no reports or complaints were filed.
4. testimony by k. vue (interviewed march 2001)
K. Vue is 24 years old and has lived in Madison for 10 years.
In August 2000, while leaving for home from an Asian party, K. Vue
and a friend was stopped and questioned by police officers about a
crime in which 10 to 15 Asian men attacked an African man. After
examining K. Vue and his friend the police officers agreed to let the
two men go. While walking back to their car, several more police
officers and the victim identified K. Vue and his friend as the
perpetrators of the crime. K. Vue, his friend, and another Asian man
were the first Asian men spotted on the streets, and were all arrested
and charged with a hate crime against the African man. At the trial,
however, the key witness confessed that he was not sure if these were
the Asian men involved, and that the only thing he was sure about is
that all Asians dressed like ``gangsters.'' The victim, himself,
admitted outside the courtroom that he was also unsure if these were
the men. Regardless of the lack of evidence, all three Hmong men were
charged with the hate crime and sentenced.; The Hmong men have filed no
complaints.
After this incident, a number of other Asian men, regardless of
their ethnicities, were stopped and questioned about their possible
involvement in the attack of the African man.
Several weeks after the attack, campus officers stopped a Taiwanese
American man at the University of Wisconsin-Madison to question him
about the incident because the small band-aid on his head, which he was
using to cover a pimple, caused suspicion.
5. testimony by t. vang (interviewed april 2001)
T. Vang is 18 years old and was born and raised in Madison, WI
T. Vang was stopped outside of her home by two police officers that
told her they had their eyes on her, and that one day they will arrest
her. They also asked her what gang she belonged too. She has never been
arrested but continues to get harassed by community officers daily. She
has not filed any complaints against the officers.
6. testimony by x. vang (interviewed april 2001)
X. Vang is 22 years old and has lived in Madison for 20 years.
Since X. Vang was 14 years old, police officers, neighborhood
officers and neighborhood security guards have profiled him. They have
all harassed him in an attempt to force a confession regarding his
``gang affiliation.'' X. Vang is not involved in any Asian gangs. In
fact, to his knowledge, there has never been an Asian gang in Madison,
Wl. X. Vang has been stopped by police officers on many occasions.
In the summer of 2000, while walking around in his neighborhood, a
police officer stopped X. Vang and requested to see his identification
card. X. Vang refused. At that point, the office cited X. Vang for
disorderly conduct and obstruction of a police officer. Since the
summer of 2000, X. Vang has received two disorderly conduct citations
and many threats of being taken to jail from different police officers.
7. testimony by l. yang (interviewed november 2000)
L. Yang is 25 years old and lives in Madison, WI
In the summer of 2000, while playing volleyball at a public park, a
group of 12 to 15 Cambodian, Laotian and Hmong youth were asked to
provide identification by a police officer who justified his request by
stating that the grass at the park was dying because Southeast Asian
people had over-used the park. When one of the young Hmong men refused
to do so, the officer threatened him. Many of the other young men
showed the officer their state identification cards because they feared
what could happen to them if they did not. L. Yang did present his
identification card to the officer.
When asked why the youth did not report this to the police
department, they said they did not know who to report it to and they
believed that if they did report the incident nothing would happen. L.
Yang also testified that after that incident, on many different
occasions, officers would drive around the park to observe the youth
play volleyball.
8. testimony by f. vang (interviewed 1997)
F. Vang is 25 years old and has lived in Madison, WI all his life.
In the summer of 1992 encounters with the police became a daily
routine for F. Vang and his friends. One day, while standing in the
parking, a few feet away from his home, F. Vang and his friends were
approached by several undercover police officers. The officers asked F.
Vang, who was at the time only 17, what gang he was affiliated with and
why he was standing in the parking lot. F. Vang walked away from the
officers and refused to answer their insulting questions. As F. Vang
walked on the sidewalk towards his older brother's house, the officers
asked him to stop so they could search him. F. Vang's older brother saw
the officers harassing his younger brother and asked the officers to
stop. The undercover officers shouted at F. Vang's older brother and
told him to ``shut up because he was nothing but an uneducated poor man
and should stay out of their business.'' The undercover officers wanted
to search F. Vang for drugs and weapons, but without a warrant F.
Vang's older brother would not allow them to. No tickets were issues,
no arrested were made and no reports were filed.
Article by Fox Butterfield, New York Times, July 30, 2001
Police departments in cities across the nation are facing what some
call a personnel crisis, with the number of recruits at record lows, an
increasing number of experienced officers turning down promotions to
sergeant or lieutenant and many talented senior officers declining
offers to become police chiefs, executive recruiters and police
officials say.
Making the situation worse, in some cities a growing number of
police officers are quitting for higher-paying jobs in suburban
departments or private businesses.
These problems have come at a time when crime is at its lowest
levels since the late 1960's and the police should be feeling good
about themselves. But, the experts say, many officers from the lowest
to the highest rank are questioning their occupation, tempted by higher
pay in the private sector after a decade- long economic boom and
discouraged by seemingly constant public and news media criticism about
police brutality and racial profiling.
John Diaz, an assistant police chief in Seattle, said the long
hours and the politics involved in a chiefs job made the position
unappealing to him.
``I would absolutely not take a job as a police chief,'' said John
Diaz, an assistant police chief in Seattle, who at 44 already has a
good national reputation and is sought after by recruiters for a chief
s post.
``The politics of being police chief have become so insane no one
wants the job,'' said Mr. Diaz, who is particularly attractive to
recruiters because he is Hispanic. ``I work an 11-hour day, but our
chief is here before me every day and doesn't leave until I'm gone, and
all he gets is attacked in the media all the time.''
The malaise felt by those from potential police recruits to chiefs
``is a major crisis all over the country,'' said Cynthia Brown, the
publisher of American Police Beat, the largest- circulation newspaper
for law enforcement officers.
The difficulties are illustrated in her publication. Until a year
ago, Ms. Brown said, she had never run an advertisement from a police
department looking for recruits, because police forces could still find
all the applicants they needed in their own communities. But in the
current issue, there are advertisements for police recruits from a
dozen cities, including Portland, Ore., and Seattle, and smaller cities
like Santa Cruz, Calif, and Sheridan, Wyo.
There has been little public attention to the police departments'
troubles, but Jeremy Travis, a senior fellow at the Urban Institute and
a former deputy police commissioner in New York City, said, ``If this
was a business, we'd be in a panic mode.''
There are no nationwide statistics on the problem. But figures from
several cities show the magnitude of the drop in applicants for the
police examination, the first step in becoming a police officer. In
Chicago last year, 5,263 people signed up for the exam, despite months
of recruiting at college campuses, military bases and churches
throughout the Midwest, said Cmdr. Bill Powers, the head of the Chicago
police personnel division. That is down from 10,290 people who signed
up in 1997 and 36,211 applicants in 1991. Traditionally, only a tiny
fraction of people who apply are eventually accepted, making a large
applicant pool important.
In New York City, more than 1,700 officers left the 41,000-member
force last year through retirement or resignation, a third more than
the year before. The retirement rate is expected to accelerate, with
concerns about morale and pay taking their toll and with a large
portion of the force soon to complete 20 years of service, when
officers can retire with a full pension.
The number of captains leaving the New York Police Department
tripled in the 2000 fiscal year from the year before, and over the next
four years, more than half of the force's 2,100 captains and
lieutenants will be eligible to retire.
While the number of people signing up to take the test to become
New York City police officers rose modestly this year over last year,
the overall number of applicants has dropped sharply in recent years.
In 1996, 32,000 people signed up. This year, 13,136 did.
In Los Angeles, where the police have been buffeted by scandals
since the Rodney King beating in 1991, there were only 19 recruits in
the police academy class in June, a record low, said Amira Smith, an
officer in the employment opportunity development division. When Ms.
Smith joined the force four years ago, there were 70 recruits in her
class, and not long before that there were 100 recruits per class. This
month Los Angeles canceled the police academy because there were not
enough recruits.
In Seattle, the police department is having trouble finding
officers to take the sergeants' examination, and sergeants to take the
exam for promotion to lieutenant. Only 86 officers took this year's
sergeants' test, down from 134 in 1997, and only 10 sergeants took this
year's exam for lieutenant, compared with 33 in 1997, department
figures show.
Many officers with seniority do not want to start over in a higher
rank, risking having to work nights or weekends, officers say. And some
sergeants do not want the promotion because lieutenants, unlike
sergeants, do not get overtime pay.
``There has been a big change in the culture of policing in the
past few years, as lifestyle becomes more important than the sense of
public service,'' said Carroll Buracker, the head of a management and
consulting firm in Harrisonburg, Va., and a former police chief in
Fairfax County, Va. Detectives in many police departments now work only
from 8 a.m. to 4 p.m., Monday through Friday, Mr. Buracker said, and
therefore are unavailable to contact a victim when a crime occurs in
the evening or over the weekend.
``So why would a detective want to give up that work schedule when
they have a family,'' he asked, ``in order to be a sergeant without
seniority and face working nights and weekends?"
To attract and retain officers, some police departments are
resorting to even more radical changes in the work week that Mr.
Buracker, among others, thinks undermine the goals of good policing. In
Tacoma, Wash., all police officers work on Thursday, he said, so
officers on a rotating basis can get six days off in a row, from Friday
through Wednesday. The new mayor of Los Angeles, James K. Hahn, won the
endorsement of the city's police union by promising to institute a
three-day work week, with 12-hour shifts.
But if officers work only three days a week, Mr. Buracker said,
they would often not be available to go to court, an essential duty in
everything from settling traffic tickets to felony trials. And they
might start making fewer arrests to avoid having to show up to testify,
he said.
Attrition is a growing problem from New York to Los Angeles. In
Detroit, where the police department is under a federal investigation
for charges that the police routinely violate citizens' civil rights,
600 to 700 officers have resigned in the last five years, according to
department figures, many to take better-paying jobs in suburban forces.
In addition, more than 1,000 other officers have retired in the last
five years, and 1,000 more are eligible to retire in the next two
years, large proportion of Detroit's 4,000-member department.
Low pay is often a factor. In Detroit, the starting salary for a
police officer is $28,865; in Houston, it is $26,000.
In Miami, the police department has only 883 officers, well below
its authorized strength of 1,045 officers. ``Because of the economy,
people are not really interested in law enforcement as a career,'' said
Sgt. David Ramras of the Miami police recruiting unit.
``We are not getting people coming out of the military,'' as police
forces long did, Sergeant Ramras said. ``It's easier for them to get a
job working with computers making a lot more money, with evenings and
weekends off.''
Sgt. John Rivera, the president of the Miami-Dade County Police
Benevolent Association, offered another explanation. ``This is
increasingly becoming a more miserable job. by the day,'' Sergeant
Rivera said. It has not helped, he said, that the Miami police have
been stung by accusations of abuse, corruption and cover-ups, and that
the department is under investigation by federal prosecutors.
Most officers are good people, he said, ``so to risk your life for
increasingly ungrateful people isn't worth it.''
The hardest part of the problem to quantify is the number of highly
qualified senior police executives who are passing up offers to become
police chiefs, and as a result, the number of cities that are having to
settle for their second or third choice. Among cities that have had
difficulty recently are Denver, Ann Arbor, Mich., Riverside, Calif, and
Prescott Valley, Ariz., some recruiters and chiefs said.
``We are down about 35 percent in the number of qualified
candidates when we do chief searches now,'' said Jerry Oldani,
president of the Oldani Group, a search firm in Bellevue, Wash.
``Up until five years ago, people broke their necks to be big city
chiefs,'' Mr. Oldani said. ``But now there are a lot of senior police
officials who just don't want to be chief.''
There are several reasons for this, said Chuck Wexler, the
executive director of the Police Executive Research Forum, an
organization of police executives that does recruiting and training.
Pay for police chiefs is relatively low--from $70,000 to $150,000--so
low that some officers or sergeants, with overtime, earn more than
their bosses, Mr. Wexler said.
Chiefs usually cannot take their retirement benefits with them from
job to job, unlike many corporate executives, and they face hardships
in relocating since cities do not offer the same help businesses do for
their senior officers, Mr. Wexler said. Then there is the difficulty of
going through a public examination by the local city council, or
civilian advisory bodies, so an applicant's whole life can suddenly
appear in the news media.
Moreover, Mr. Wexler said, ``the expectations for chiefs are higher
than ever, because of the new belief that chiefs can do something about
reducing crime.''
So for a mayor, picking a police chief ``has become like drafting a
star quarterback,'' Mr. Wexler said, ``but with these expectations,
there is danger, because you can't expect to get those crime drops
forever.''
``When people add up all these costs, it often isn't worth it to
take a chiefs job,'' Mr. Wexler said.
In Seattle last year, when the city was looking for a new chief in
the aftermath of the violent demonstrations at the World Trade
Organization meeting, none of the assistant chiefs applied.
Mr. Diaz was one of those assistant chiefs. ``It's really odd,
because the usual route is to want to get promoted and become the
head,'' he said, ``but being chief is a thankless job.''
The eventual choice was Gil Kerlikowske, a former police
commissioner in Buffalo.
Last Sunday, Chief Kerlikowske went out for a run from police
headquarters and came across a crowd surrounding a woman who had passed
out--from a heroin overdose, it turned out. The chief, in his jogging
gear, stopped to give her mouth-to-mouth resuscitation, then, when she
began to breathe again, took her to the hospital. Later, Chief
Kerlikowske had to go to the hospital himself, for hepatitis B shots.
But on the evening news, Mr. Oldani said, the chiefs good deed
merited just a few seconds. The major item, he said, was about the
police chase of a stolen car, which struck a pedestrian, and the
criticism that the police were to blame for the injured pedestrian.
``It's a good example of what's wrong,'' Mr. Oldani said. ``He was
being a good cop, and that just got lost.''
Article by Roger Clegg, National Review, June 29, 2001
Last week, the Washington Post ran a front page, above-the-fold
story, headlined ``Discrimination's Lingering Sting/Minorities Tell of
Profiling, Other Bias.'' The story reports the results of a survey by
the Post, the Henry J. Kaiser Family Foundation, and Harvard
University. The gist of the survey is that in a wide variety of areas--
police stops, employment, physical assaults, service at restaurants and
stores, etc.--blacks are more likely to report that they have been
discriminated against because of their race than whites are, with
Hispanics and Asians falling in between.
But despite the stop-the-presses headline treatment, there is much
less to the study than meets the eye, and in fact its findings do
little to support the liberal agenda.
The basic limitation with the study is that it is not reporting the
``sting'' of actual discrimination at all, but only whether people
think they have been discriminated against. On the second page of the
story, on page A16, in the story's seventh paragraph, it is obliquely
acknowledged that the study is measuring only people's perceptions and
not necessarily reality, and it is not until the 24th paragraph that
the Post story says outright, ``An honest error or an unintended slight
may be misconstrued as an act of racial intolerance.''
Moreover, there is a half-empty versus half-full way of looking at
the data. For the study's overarching question, ``During the last 10
years, have you experienced discrimination because of your racial or
ethnic background, or not?,'' more than half- 53 percent of African
Americans said no. That is surely an astounding indicator of progress.
Less than a generation after Martin Luther King Jr.'s ``I have a
dream'' speech and formal, de jure segregation, more than half of black
Americans say they are not being discriminated against at all.
For Hispanics and Asian, the figures are even better: Six in ten
say they have suffered no discrimination in the past ten years (for
whites, the number is eight in ten).
The study also indicates that white-on-black discrimination is not
the only kind. For instance, 35 percent of African Americans say they
have lost out on a job or promotion because of their race, versus only
10 percent of whites. One way to look at this is that-assuming that the
figures reflect reality and that the each individual who answered
positively has suffered the same number of hiring/promotion denials--if
you are black, you are three-and-a-half times more likely to suffer
workplace discrimination than if you are white.
But, on the other hand, there are six times as many whites as
blacks in the United States. And that means that there are 1.7 times as
many instances in which whites are discriminated against in the
workplace as instances where blacks are the victims. In other words,
the study could be cited to support the conclusion that ``reverse''
discrimination is a much more widespread problem than ``old-fashioned''
discrimination.
The numbers are even more sobering when the question is, ``Have you
ever been physically threatened or attacked because of your race or
ethnic background?'' Seventeen percent of blacks said they had, almost
double the number of whites (9 percent). So blacks are twice as likely
to report that they have been physically threatened or attacked but
there are more than three times as many racial assaults on whites as on
blacks reported.
Two days after it published the results of this survey, the Post
reported on a study by University of Michigan psychologist Lilia
Cortina. This study, which was not focusing on race or ethnicity,
surveyed 1,100 federal court employees. It found that 71 percent of
them believed they had been insulted, ignored, or otherwise dissed by
co-workers or superiors during the past five years.
The point is that there is a lot of perceived incivility in
society. There is also much disappointment in life. When bad things
happen, there is a universal human tendency to blame someone else.
There is also a need to ascribe some motive to the wrongdoer.
The original Post article quotes Lawrence Bobo, a professor of
Afro-American studies and sociology at Harvard, who asserts that the
study reflects ``the steady occurrence of slights and put-downs you
know in your gut are tied to race but that rarely take the form of
blatant racism. No one uses the N-word. There is not a flat denial of
service. It is insidious, recurrent, lesser treatment.''
The trouble is, the subtler the slights, the greater the likelihood
that they may not be slights, or at least racial slights, at all. The
media do minorities no favor by suggesting that discrimination is more
widespread than it really is.
There is no doubt that bigotry still exists in our country and I
have no doubt that African Americans suffer from it the most. But it is
also undeniable that there is less of it than there used to be, and
that black bigotry against whites is also a problem. The study helps
document all this, but none of this is news, and so the study is not
very helpful even after its limitations are recognized.
The tougher questions are: (1) Why does bigotry still exist?; and
(2) What is to be done about it? The study offers no guidance on these,
more important questions.
One suspects that the powers that be at Harvard and the Washington
Post believe in their hearts that white parents teach their children to
be bigots and that the way to solve the problem is by the use of racial
preferences. The fact of the matter, however, is that prejudice
nowadays is more likely to have its origin and certainly its
reinforcement in the easily observable and undeniable pathologies of
the inner city--no justification for bigotry, but a fact that has to be
grappled with--and that racial preferences make race relations worse,
not better, by confirming stereotypes, fostering white resentment, and
feeding a victim mentality among African Americans.
Article by David Cole and John Lamberth, New York Times, May 13, 2001
The Fallacy of Racial Profiling
Byline: By David Cole and John Lamberth; David Cole, a professor at
Georgetown University Law Center, is author of "No Equal Justice: Race
and Class in the American Criminal Justice System." John Lamberth is
associate professor of psychology at Temple University.
Body
It is no longer news that racial profiling occurs; study after
study over the past five years has confirmed that police
disproportionately stop and search minorities. What is news, but has
received virtually no attention, is that the studies also show that
even on its own terms, racial profiling doesn't work.
Those who defend the police argue that racial and ethnic
disparities reflect not discrimination but higher rates of offenses
among minorities. Nationwide, blacks are 13 times more likely to be
sent to state prisons for drug convictions than are whites, so it would
seem rational for police to assume that all other things being equal, a
black driver is more likely than a white driver to be carrying drugs.
But the racial profiling studies uniformly show that this widely
shared assumption is false. Police stops yield no significant
difference in so-called hit rates--percentages of searches that find
evidence of lawbreaking--for minorities and whites. If blacks are
carrying drugs more often than whites, police should find drugs on the
blacks they stop more often than on the whites they stop. But they
don't.
In Maryland, for example, 73 percent of those stopped and searched
on a section of Interstate 95 were black, yet state police reported
that equal percentages of the whites and blacks who were searched,
statewide, had drugs or other contraband. In New Jersey, where police
have admitted to racial profiling, searches in 2000 conducted with the
subjects' consent yielded contraband, mostly drugs, on 25 percent of
whites, 13 percent of blacks and only 5 percent of Latinos.
A study of stop-and-frisk practices in New York City in 1998 and
1999 found that while police disproportionately stopped young black
men, the hit rates were actually marginally higher for whites than for
blacks or Latinos. And while 43 percent of those searched at airports
by the Customs Service in 1998 were black or Latino, illegal materials
were found on 6.7 percent of whites, 6.3 percent of blacks and 2.8
percent of Latinos.
Other studies corroborate that drug use and dealing are equal
opportunity offenses. The Public Health Service reports, based on
anonymous surveys, that blacks, at 13 percent of the population,
account for 15 percent of illegal drug users. Hispanics are 11 percent
of the population and 8 percent of illegal drug users, and whites are
more than 70 percent in both categories. A National Institute of
Justice study found that most users report getting their drugs from
dealers of their own racial or ethnic background; so dealing rates are
likely to track user rates. These figures suggest that race and
ethnicity are simply not useful criteria for suspicion.
The Customs Service's experience is illustrative. In late 1998, the
service adopted reforms designed to eliminate racial and gender bias in
its searches. In 2000, it conducted 61 percent fewer searches than in
1999, but seizures of cocaine, heroin and Ecstasy all increased. From
1998 to 2000, hit rates for whites and blacks increased by about 125
percent, from less than 7 percent to 15.8 percent, while hit rates for
Latinos increased more than fourfold, from 2.8 percent to 13.1 percent.
Perhaps most important is that every year the vast majority of both
blacks and whites are not arrested for anything. A generalization
linking race or ethnicity to crime will therefore inevitably sweep in
many innocent people. And police will miss guilty people who don't fit
their stereotypes. As cities from New York to Cincinnati have seen,
reliance on race corrodes the legitimacy of the criminal justice system
by reneging on its promise of equality. But that's old news. The new
news is that racial profiling just doesn't work.
Article by John Derbyshire, National Review, February 19, 2001
In Defense of Racial Profiling
``Racial Profiling'' has become one of the shibboleths of our time.
Anyone who wants a public career in the United States must place
himself on record as being against it. Thus, ex-senator John Ashcroft,
on the eve of his confirmation hearings: ``It's wrong, inappropriate,
shouldn't be done:'' During the vice-presidential debate last October,
moderator Bernard Shaw invited the candidates to imagine themselves
black victims of racial profiling. Both trade the required ritual
protestations of outrage. Lieberman: ``I have a few African-American
friends who have gone through this horror, and you know, it makes me
want to kind of hit the wall, because it is such an assault on their
humanity and their citizenship.'' Cheney: ``It's the sense of anger and
frustration and rage that would go with knowing that the only reason
you were stopped . . . was because of the color of your skin . . .'' In
the strange, rather depressing, pattern these things always follow
nowadays, the American public has speedily swung into line behind the
Pied Pipers: Gallup reports that 81 percent of the public disapproves
of racial profiling.
All of which represents an extraordinary level of awareness of, and
hostility to, and even passion against (``hit the wall . . . '') a
practice that, up to shout five years ago, practically nobody had heard
of. It is, in fact, instructive to begin by looking at the history of
this shibboleth.
To people who follow politics, the term ``racial profiling''
probably first registered when AI Gore debated Bill Bradley at New
York's Apollo Theatre in February 2000. Here is Bradley, speaking of
the 1999 shooting of African immigrant Amadou Diallo by New York City
police: ``I . . . think it reflects . . . racial profiling that seeps
into the mind of someone so that he sees a wallet in the hand of a
white man as a wallet, but a wallet in the hand of a black man as a
gun. And we-we have to change that. I would issue an executive order
that would eliminate racial profiling at the federal level.''
Nobody was unkind enough to ask Sen. Bradley how an executive order
would change what a policeman sees in a dark lobby in a dangerous
neighborhood at night. Nor was anyone so tactless as to ask him about
the case of LaTanya Haggerty, shot dead in June 1999 by a Chicago
policewoman who mistook her cell phone for a handgun. The policewoman
was, like Ms. Haggerty, black.
A1 Gore, in that debate at the Apollo, did successfully, and
famously, ambush Bradley by remarking that: ``You know, racial
profiling practically began in New Jersey, Senator Bradley'' In true
Clinton-Gore fashion, this is not true, but it is sort of true.
``Racial profiling'' the thing has been around for as long as police
work, and is practiced everywhere. ``Racial profiling'' the term did
indeed have its origins on the New Jersey Turnpike in the early 1990s.
The reason for the prominence of this rather unappealing stretch of
expressway in the history of the phenomenon is simple: The turnpike is
the main conduit for the shipment of illegal drugs and other contraband
to the great criminal marts of the Northeast.
The career of the term ``racial profiling'' seems to have begun in
1994, but did not really take off until April 1998, when two white New
Jersey state troopers pulled over a van for speeding. As they
approached the van from behind, it suddenly reversed towards them. The
troopers fired eleven shots from their handguns, wounding three of the
van's four occupants, who were all black or Hispanic. The troopers,
James Kenna and John Hogan, subsequently became poster boys for the
``racial profiling'' lobbies, facing the same indignities, though so
far with less serious consequences, as were endured by the Los Angeles
policemen in the Rodney King case: endless investigations, double
jeopardy, and so on.
And a shibboleth was born. News-media databases list only a
scattering of instances of the term ``racial profiling'' from 1994 to
1998. In that latter year, the number hit double digits, and thereafter
rose quickly into the hundreds and thousands. Now we all know shout it,
and we are, of course, all against it.
Well, not quite all. American courts-including (see below) the U.S.
Supreme Court-are not against it. Jurisprudence on the matter is pretty
clear: So long as race is only one factor in a generalized approach to
the questioning of suspects, it may be considered. And of course, pace
Candidate Cheney, it always is only one factor. I have been unable to
locate any statistics on the point, but 1 feel sure that elderly black
women are stopped by the police much less often than are young white
men.
Even in the political sphere, where truth-telling and independent
thinking on matters of race have long been liabilities, there are those
who refuse to mouth the required pieties. Alan Keyes, when asked by
Larry King if he would be angry with a police officer who pulled him
over for being black, replied: ``I was raised that everything I did
represented my family, my race, and my country. I would be angry with
the people giving me a bad reputation.''
goodbye to common sense
Practically all law-enforcement professionals believe in the need
for racial profiling- In an article on the topic for The New York Times
Magazine in June 1999, Jeffrey Goldberg interviewed Bernard Parks,
chief of the Los Angeles Police Department. Parks, who is black, asked
rhetorically of racial profiling: ``Should we play the percentages? . .
. It's common sense.'' Note that date, though. This was pretty much the
latest time at which it was possible for a public official to speak
truthfully about racial profiling. Law-enforcement professionals were
learning the importance of keeping their thoughts to themselves. Four
months before the Goldberg piece saw print, New Jersey statepolice
superintendent Carl Williams, in an interview, said that certain crimes
were associated with certain ethnic groups, and that it was naive to
think that race was not an issue in policing-both statements, of
course, perfectly true. Supt. Williams was fired the same day by Gov.
Christie Todd Whitman.
Like other race issues in the U.S., racial profiling is a
``tadpole,'' with an enormous black head and a long but comparatively
inconsequential brown, yellow, and red tail. While Hispanic, ``Asian-
American,'' and other lesser groups have taken up the ``racial
profiling'' chant with gusto, the crux of the matter is the resentment
that black Americans feel toward the attentions of white policemen. 13y
far die largest number of Americans angry about racial profiling are
law-abiding black people who feel that they are stopped and questioned
because the police regard all black people with undue suspicion. They
feel that they are the victims of a negative stereotype.
They are. Unfortunately, a negative stereotype can be correct, and
even useful. I was surprised to find, when researching this article,
that within the academic field of social psychology there is a large
literature on stereotypes, and that much of it--an entire school of
thought-holds that stereotypes are essential life tools. On the
scientific evidence, the primary function of stereotypes is what
researchers call ``the reality function.'' That is, stereotypes are
useful tools for dealing with the world. Confronted with a snake or a
fawn, our immediate behavior is determined by generalized beliefs-
stereotypes-about snakes and fawns. Stereotypes are, in fact, merely
one aspect of the mind's ability to make generalizations, without which
science and mathematics, not to mention, as the snake/fawn example
shows, much of everyday life, would be impossible.
At some level, everybody knows this stuff, even the guardians of
the ``racial profiling'' flame. Jesse Jackson famously, in 1993,
confessed that: ``There is nothing more painful to me at this stage in
my life than to walk down the street and hear footsteps and start
thinking about robbery, then look around and see somebody white and
feel relieved.'' Here is Sandra Seegars of the Washington, D.C.,
Taxicab Commission:
Late at night, if I saw young black men dressed in a slovenly
way, I wouldn't pick them up . . . And during the day, I'd
think twice about it.
Pressed to define ``slovenly;'' Ms. Seegars elaborated thus: ``A
young black guy with his hat on backwards, shirttail hanging down
longer than his coat, baggy pants down below his underwear; and unlaced
tennis shoes.'' Now there's a stereotype for you! Ms. Seegars is, of
course, black.
Law-enforcement officials are simply employing the same stereotypes
as you, me, Jesse, and Sandra, but taking the opposite course of
action. What we seek to avoid, they pursue. They do this for reasons of
simple efficiency. A policeman who concentrates a disproportionate
amount of his limited time and resources on young black men is going to
uncover far more crimes-and therefore be far more successful in his
career than one who biases his attention toward, say, middle-aged Asian
women. It is, as Chief Parks said, common sense.
Similarly with the tail of the tadpole-racial-profiling issues that
do not involve black people. China is known to have obtained a top-
secret warhead design. Among those with clearance to work on that
design are people from various kinds of national and racial background.
Which ones should investigators concentrate on? The Swedes? The answer
surely is: They should first check out anyone who has family or friends
in China, who has made trips to China, or who has met with Chinese
officials. This would include me, for example-my father-in-law is an
official of the Chinese Communist Parry. Would I then have been
``racially profiled''?
It is not very surprising to team that the main fruit of the
``racial profiling'' hysteria has been a decline in the efficiency of
police work. In Philadelphia, a federal court order now requires police
to fill out both sides of an 8\1/2\-by-11 sheet on every citizen
contact. Law-enforcement agencies nationwide are engaged in similar
statistics-gathering exercises, under pressure from federal lawmakers
like US. Rep. John Conyers, who has announced that he will introduce a
bill to force police agencies to keep detailed information about
traffic stops. (``The struggle goes on,'' declared Rep. Conyers. The
struggle that is going on, it sometimes seems, is a struggle to prevent
our police forces from accomplishing any useful work at all.)
A policeman who concentrates a disproportionate amount of his time and
resources on young black men is going to uncover far more
crimes.
The mountain of statistics that is being brought forth by all this
panic does not, on the evidence so far, seem likely to shed much light
on what is happening. The numbers have a way of leading off into
infinite regresses of uncertainty. The city of San Jose, Calif., for
example, discovered that, yes, the percentage of blacks being stopped
was higher than their representation in the city's population. Ah, but
patrol cars were computer assigned to high-crime districts, which are
mainly inhabited by minorities. So that over-representation might
actually be an under-representation! But then, minorities have fewer
cars . . .
the core arguments
Notwithstanding the extreme difficulty of finding out what is
actually happening, we can at least seek some moral and philosophical
grounds on which to take a stand either for or against racial
profiling. I am going to take it as a given that most readers of this
article will be of a conservative inclination, and shall offer only
those arguments likely to appeal to persons so inclined. If you seek
arguments of other kinds, they are not hard to find--just pick up your
newspaper or rum on your TV.
Of arguments against racial profiling, probably the ones most
persuasive to a conservative are the ones from libertarianism. Many of
the stop-and-search cases that brought this matter into the headlines
were part of the so-called war on drugs. The police procedures behind
them were ratified by court decisions of the 1980s, themselves mostly
responding to the rising tide of illegal narcotics. In US. vs. Montoya
De Hernandez (1985) for example, Chief justice Rehnquist validated the
detention of a suspected ``balloon swallowing'' drug courier until the
material had passed through her system, by noting previous invasions
upheld by the Court:
[First class mail may be opened without a warrant on less than
probable cause . . . Automotive travelers may be stopped . . .
near the border without individualized suspicion even if the
stop is based largely on ethnicity . . .
(My italics.) The Chief Justice further noted that these incursions
are in response to ``the veritable national crisis in law enforcement
caused by smuggling of illegal narcotics.''
Many on the political Right feel that the war on drugs is at best
misguided, at worst a moral and constitutional disaster. Yet it is
naive to imagine that the ``racial profiling'' hubbub would go away, or
even much diminish, if all state and federal drug laws were repealed
tomorrow. Black and Hispanic Americans would still be committing crimes
at rates higher than citizens of other races. The differential
criminality of various ethnic groups is not only, or even mainly,
located in drug crimes. In 1997, for example, blacks, who are 13
percent of the US. population, comprised 35 percent of those arrested
for embezzlement. (It is not generally appreciated that black Americans
commit higher levels not only of ``street crime,'' but also of white-
collar crime.)
We must confront our national hysteria about race, which causes large
numbers of otherwise sane people to believe foolish things.
Even without the drug war, diligent police officers would still,
therefore, be correct to regard black and Hispanic citizens other
factors duly considered-as more likely to be breaking the law. The
Chinese government would still be trying to recruit spies exclusively
from among Chinese-born Americans. ('The Chinese Communist Party is, in
this respect, the keenest ``racial profiler'' of all.) The Amadou
Diallo case-the police were looking for a rapist-would still have
happened.
The best non-libertarian argument against racial profiling is the
one from equality before the law. This has been most cogently presented
by Prof Randall Kennedy of Harvard. Kennedy concedes most of the points
I have made. Yes, he says:
Statistics abundantly confirm that African Americans and
particularly young black men-commit a dramatically
disproportionate share of street crime in the United States.
This is a sociological fact, not a figment of the media's (or
the police's) racist imagination. In recent years, for example,
victims of crime report blacks as the perpetrators in around 25
per cent of the violent crimes suffered, although blacks
constitute only about twelve percent of the nation s
population.
And yes, says Prof. Kennedy, outlawing racial profiling will reduce
the efficiency of police work. Nonetheless, for constitutional and
moral reasons we should outlaw the practice. If this places extra
burdens on law enforcement, well, ``racial equality, like all good
things in life, costs something; it does not come for free.''
There are two problems with this. The first is that Kennedy has
minimized the black-white difference in criminality, and therefore that
``cost.'' I don't know where his 25 percent comes from, or what
``recent years'' means, but I do know that in Department of justice
figures for 1997, victims report 60 percent of robberies as having been
committed by black persons. In that same year, a black American was
eight times more likely than a non-black to commit homicide-and ``non-
black'' here includes Hispanics, not broken out separately in these
figures. A racial-profiling ban, under which police officers were
required to stop and question suspects in precise proportion to their
demographic representation (in what? the precinct population? the state
population? the national population?), would lead to massive
inefficiencies in police work. Which is to say, massive declines in the
apprehension of criminals.
The other problem is with the special status that Prof. Kennedy
accords to race. Kennedy: ``Racial distinctions are and should be
different from other lines of social stratification.'' Thus, if it can
he shown, as it surely can, that state troopers stop young people more
than old people, relative to young people's numerical representation on
the toad being patrolled, that is of no consequence. If they stop black
people more than white people, on the same criterion, that is of large
consequence. This, in spite of the fact that the categories ``age'' and
``race'' are both rather fuzzy (define ``young'') and are both useful
predictors of criminality. In spite of the fact, too, that the
principle of equality before the law does not, and up to now has never
been thought to, guarantee equal outcomes for any law enforcement
process, only that a citizen who has come under reasonable suspicion
will be treated fairly.
It is on this special status accorded to race that, I believe, we
have gone most seriously astray. I am willing, in fact, to say much
more than this: In the matter of race, I think the Anglo Saxon world
has taken leave of its senses. The campaign to ban racial profiling is,
as I see it, a part of that large, broad-fronted assault on common
sense that our over-educated, overlawyered society has been enduring
for some forty years now, and whose roots are in a fanatical
egalitarianism, a grim determination not to face up to the realities of
group differences, a theological attachment to the doctrine that the
sole and sufficient explanation for all such differences is ``racism"-
which is to say, the malice and cruelty of white people-and a nursed
and petted guilt towards the behavior of our ancestors.
At present, Americans are drifting away from the concept of
belonging to a single nation. I do not think this drift will be
arrested until we can shed the idea that deference to the sensitivities
of racial minorities--however overwrought those sensitivities may be,
however over-stimulated by unscrupulous mountebanks, however
disconnected from reality--trumps every other consideration, including
even the maintenance of social order. To shed that idea, we must
confront our national hysteria about race, which causes large numbers
of otherwise sane people to believe that the hearts of their fellow
citizens are filled with malice towards them. So long as we continue to
pander to that poisonous, preposterous belief, we shall only wander off
deeper into a wilderness of division, mistrust, and institutionalized
rancor-that wilderness, the most freshly painted signpost to which
bears the legend RACIAL PROFILING.
Statement of Hispanic American Police Command Officers Association,
Washington, D.C.
support the end racial profiling act of 2001
Washington. D.C. (AUGUST 1, 2001)--The Hispanic American Police
Command Officers Association (HAPCOA) representing 15,000 police
command officers and administrators strongly support the End of Racial
Profiling Act of 2001 introduced by Senators Feingold (D-WI), Clinton
(D-NY), Corzine (D-NJ) and Representatives Conyers ( D-MI), Morelia (R-
MD), and Greenwood (R-PA).
National President Sheriff Ralph Lopez in a fetter to Senators,
asked for support of the bill. Sheriff Lopez stated ``that racial
profiling is a discriminatory practice that poses barriers to effective
policing practices. This issue is of significant importance to the
Hispanic community because it jeopardizes rapport building among
Hispanics and the police; this makes it less likely that Hispanics will
seek help from police, report a crime, serve as a witness. or otherwise
cooperate with law enforcement.'' HAPCOA hopes to send a clear message
to law enforcement agencies that ``racial profiling practices based on
race, ethnicity, and/or national origin since it threatens the
integrity of all police entities.''
HAPCOA further supports the End Racial Profiling Act of 2001,
because; it bans the use of racial tactics by federal law enforcement,
provides incentives to state and local law enforcement agencies to
eliminate the practice, requires the coffection of data on routine
investigatory activities, establishes procedures for receiving,
investigating, and responding to claims of racial profiling, requires
training of law enforcement agents, and finally, holds them accountable
for engaging in racial profiling.
HAPCOA is a non-profit association composed of over 15,000 members,
affiliate departments and offices, with command level law enforcement
and other personnel throughout the United States and Puerto Rico. Its
mission is to enhance capabilities and technological skills through
training, networking, and establish relationships within law
enforcement and other professions. Its national office is located at
the Ronald Reagan Building &: International Trade Center, 1300
Pennsylvania Avenue, NW, Ste. 270, Washington D.C.
Statement of International Association of Chiefs of Police, Alexandria,
Virginia
Biased-Based Policing & Data Collection
The International Association of Chiefs of Police (IACP) believes
that any form of police action that is based solely tin the race,
gender, ethnicity, age or socio-economic level of an individual is both
unethical and illegal.
Therefore, the IACP strongly encourages all law enforcement
agencies to develop and implement anti-discriminatory policies that
explicitly prohibit biased enforcement practices.
The IACP believes that data collection can play a role in reducing
the incidence of biased enforcement actions. However, in order to
achieve this goal, data collection programs must be conducted in a
fashion that ensures that data is being collected and analysed in a
impartial and methodologically sound fashion.
In addition, the IACP strongly believes that legislative proposals
addressing the issue of biased policing should be carefully drafted so
that legitimate law enforcement practices and operations are not
compromised.
Therefore, the IACP believes that the following elements should be
included in legislation that addresses biased-based policing and data
collection.
Definition of Biased-Based Policing
``Biased-Based Policing'' should be defined as conduct by law
enforcement officers motivated solely by an individual's race, gender,
ethnicity, age or socio-economic level, but should not preclude
consideration of race or ethnicity when it is part of a suspect's
description or is otherwise validly related to an officer's
investigation of criminal activity. A clear definition provides
guidance to law enforcement officers and serves as a statement of
legislative intent.
Data Collection
Data collection programs should have a specified and limited
duration anal be confined to determining the existence or extent of
hissed-based policing. This allows the collection and analysis of data
over a finite period, without imposing an unending administrative
burden on the law enforcement agencies.
The amount of information collected. should be carefully tailored
to reduce the intrusiveness of the inquiry on citizens, yet sufficient
for a complete and valid analysis. The data must permit an analysis
that correlates the demographic data with causal predicates and other
relevant factors, such as location and citizen complaints,
Therefore, the IACP strongly recommends that any proposed data
collection regime should include data elements scientifically
determined to provide valid results, such as:
1. Date and Time of Stop
2. Location of Stop, including highway type
3. Officer Identification Information (e.g. Badge Number)
4. Race/Ethnicity of Driver
5. Sex of Driver
6. Date of Birth of the Driver
7. Vehicle Type
8. Registration, including state
9. Specific Reason for making stop
10 Disposition of stop
11. Search Requested/Conducted?
a) Reason for search request
b) Type of search
C) Race/ethnicity/sex/age of all passengers in vehicle if search is
done
d) Contraband found
e) Property seized
Driver/Passenger Identification
The manner of data collection should be designed to minimize the
intrusiveness of the data collection on the citizen involved and reduce
the administrative burden on police.
Ideally, the IACP recommends that all drivers self identify their
race/ethnicity on their drivers license application. The race/ethnicity
should be included in a bar code on the license, but this information
should not be displayed to the officer making the stop, on the ticket
issued or the dispatcher running a computer check on the driver. This
information should only be made available to the researchers/analysts
performing the statistical analysis of the collected data.
However, until such a system is available nationwide, the officer
making the stop should report race/ethnicity on the basis of their
objective observations/perceptions at the time of tile stop.
Data Analysis
It is vital that the collected data be analyzed in an impartial and
scientifically sound fashion. Therefore, the IACP believes that
accredited academic institutions or other organizations that use
qualified statisticians and analysts should be tasked with performing
this work. The collected data should be compared to baseline data that
provides an accurate reflection of the subject populations demographic
composition when evaluating whether or not biased-based policing is, in
fact, a problem. Researchers conducting the analyses should provide
empirical evidence that the baseline data accurately reflects the
demographic composition of the specific area (e.g., town, highway,
etc.) being policed so that the results of the study will be
statistically valid.
Incentive Based Approach
Legislative proposals addressing data collection should provide law
enforcement agencies with an incentive to perform data. collection.
Under such an incentive based approach, agencies that agree to perform
data collection as set forth in the legislation would be eligible to
receive federal assistance funds that may be used for a variety of uses
related to combating biased policing. For example, agencies should be
authorized to use these funds to:
1) Cover the costs associated with implementing the data
collection regime
2) Purchase equipment, such as in-car video/audio equipment,
that is useful in addressing concerns over biased policing (In-
car video cameras are one of the most effective ways to
document motor vehicle stops and interactions between officers
and drivers/passengers. These systems serve as a deterrent to
biased-based stops and false reporting of incidents.)
3) Cover the costs of training programs for their law
enforcement officers. (Training is an important component of
legislation. Training will help sensitize police officers to
the need to treat all persons equally and fairly. However,
specific-training requirements, including the number of hours
or topics to be covered, should be the responsibility of law
enforcement administrators, whom should design training
programs appropriate to their agencies.)
Article by Katherine Kersten, Weekly Standard, August 20-27, 2001
Race to Conclusions
what the activists don't tell you about racial profiling.
Five years ago, Minneapolis was nationally ' notorious as
``Murderopolis.'' The murder rate was soaring, and many citizens walked
in fear, especially in poor neighborhoods. A few short years later,
there's been an astonishing turnaround. Today, thanks partly to a new
initiative by local police, crime in Minneapolis has plummeted to its
lowest level since 1966-and, in an added benefit, citizen complaints
about the police are down 40 percent, though arrests have risen
rapidly. Apparently, officers have managed to bring crime under control
while dealing correctly with those they encounter when enforcing the
law.
Yet instead of congratulations, police are catching brickbats. The
department is under siege in the media, accused of making racial
bigotry a standard operating procedure. The outcry began in January
2001, with the release of demographic data suggesting that officers who
made traffic stops were pulling over proportionately more black drivers
than white, and taking black drivers into custody more often. Activist
groups quickly charged that police were targeting minorities because of
their race, not their illegal conduct, and branded the department with
the scarlet letter of racial profiling.
Like the decline in crime, the rancor over racial profiling is a
national phenomenon. And as in Minneapolis, so in dozens of cities,
studies of police stops by race are fueling the debate. Already,
traffic-stop studies have been completed or are proceeding in locales
as disparate as San Jose, California, and Volusia County, Florida. At
least 10 states have passed laws requiring studies of traffic stops,
and many others are considering legislation. At the federal level,
representative John Conyers and senator Russ Feingold have introduced
legislation that would require the Department of Justice to conduct a
nationwide study of traffic stops.
The cost of these studies is often significant, both in dollars and
officer time. But their chief drawback is something deeper. Though
ostensibly undertaken to diagnose the problem, these studies to date
don't begin to support the conclusions that the media and activist
groups are drawing from them. The crusaders against racial profiling
would have us believe that their findings trip the veil off a
widespread abuse of civil liberties, and prove that police are
targeting minorities because of their race. But the studies do nothing
of the kind. To conclude from traffic-stop numbers like those gathered
in Minneapolis that the police are racist is about as justified as it
would be to conclude from the fact that 95 percent of Minnesota's
prison inmates are men that police are sexist. A closer look at the
Minneapolis experience makes this plain.
though ostensibly undertaken to diagnose the problem, traffic-stop
studies don't begin to support the conclusions being drawn from them.
For six months beginning in May 2000, the Minneapolis police
department gathered information on every traffic stop, noting the
driver's race, the date, the location, and whether the driver was
warned, ticketed, or taken into custody. The raw data released under
pressure from a local newspaper appeared disturbing at first glance.
Though blacks make up 18 percent of Minneapolis's population, they
accounted for 37 percent of traffic stops, while whites, 65 percent of
the population, accounted for only 43 percent of stops. No significant
disparities turned up in the rates at which different racial groups
received tickets, but black, Hispanic, and Indian drivers were more
than twice as likely as whites to be taken into custody. And these
figures are only the beginning: Minneapolis is now conducting a more
detailed two-year study. More challenging is to determine what the
figures mean.
Here's the problem: To analyze raw traffic-stop numbers accurately,
one must have an appropriate benchmark against which to measure them.
But no one knows what the proper benchmark is. In the above example of
prisoners' sex, to determine whether Minnesota has ``too many'' male
inmates, we must compare the proportion of males in the prison
population with the proportion of males in the criminal population, not
the population at large, since in Minnesota, as elsewhere, men commit
the vast majority of imprisonable offenses. Where traffic stops are
concerned, however, no one has devised an appropriate benchmark, since
the factors affecting who gets pulled over are numerous and complex.
Lacking a meaningful basis for comparison, study proponents usually
take the easy way out: They compare the racial breakdown of traffic
stops to the racial breakdown of the general population of, say, the
relevant county or metropolitan area. Then they attribute to racism any
deviation that appears to ``favor'' whites. But this simplistic
approach merely gives a patina of science to what is essentially an
ideological project.
So what would a meaningful benchmark be? Obviously, to determine
whether an officer is stopping ``too many'' minority drivers, we must
first know the racial breakdown of the motorists on the roads he
patrols. For instance, suppose that over six months, an officer who
patrols Minneapolis's heavily poor and minority Phillips neighborhood
stops 80 percent black drivers, while another officer who works the
swank Lake Harriet beat, where investment bankers jog, stops only 15
percent black drivers. Can one conclude that the first officer is a
racist, while the other isn't? Of course not.
To learn whether either cop has stopped ``too many'' minority
drivers, we need a street census of the neighborhoods in question-
something few studies include. The time of day that the stops occurred
is also likely to be crucial. Thus, between 4 PM. and 6 PM., traffic on
Minneapolis's Portland Avenue, a major artery in Phillips, is made up
largely of white suburban commuters. But between 9:00 PM. and 3:00
A.M., when most enforcement takes place, drivers on Portland are far
more heavily minority. Since most stops occur when suburban motorists
have left the area, traffic stops on Portland are likely to include a
disproportionately high share of minority drivers.
But knowing who was on the roads when stops took place is only one
requirement for meaningful analysis. We must also know whether some
racial groups commit more traffic violations than others; if so, their
stop numbers should reflect this.
For example, traffic stops often involve cars with faulty
equipment, like broken tail lights, loud mufflers, or cracked
windshields. Motorists who drive older cars which tend to be in
relatively poor repair-are more likely than other drivers to be stopped
for such violations.
Presumably, black drivers in Minneapolis drive older cars, on
average, than white drivers do. (According to 1990 Census data, the per
capita income of the city's black residents is less than half that of
white residents.) Under these circumstances, one would expect
proportionately more black than white drivers to be pulled over for
equipment violations.
The story may be similar with moving traffic violations, though
data are hard to come by. Writing in City Jonrnal, journalist Heather
Mac Donald points out that random national surveys of drivers on
weekend nights have found that blacks were more likely to fail
breathalyzer tests than whites. Likewise, the National Highway Traffic
Safety Administration has found that blacks were 10 percent of drivers
nationally, 13 percent of drivers in fatal accidents, and 16 percent of
drivers in injury accidents. (Mac Donald notes that lower rates of
seat-belt use may contribute to these figures.)
Age is another important variable. Young drivers are more likely
than older drivers to violate traffic laws, and to drive negligently or
recklessly, as any parent knows who's footed a teenager's insurance
bill. Minneapolis's black population is significantly younger than its
white population, and thus presumably includes a larger proportion of
young drivers. (While blacks are only 18 percent of the city's total
population, they are 31 percent of residents under 18.) This racial age
disparity reflects a national pattern. In Chicago, for example, blacks
are 34 percent of residents over 18, but 44 percent of those under 18;
in Boston, the figures are 22 percent and 40 percent. Most likely, this
sizable age disparity contributes significantly to the black-white
difference in traffic stops.
Clearly, many factors can explain legitimate racial disparities in
traffic stops. But one factor appears to dwarf all the others: the
extraordinary disparities in the rates at which various racial groups
commit crimes. Nationally, blacks commit murder at seven times the rate
whites do. Likewise, though blacks are 13 percent of the population,
they commit 46 percent of all robberies. In Minneapolis, the disparity
is even starker. Blacks are 18 percent of the population, but crime
victims report that blacks commit 66 percent of serious offenses, like
murder, rape, and robbery, and 58 percent of ``quality of life''
crimes, like prostitution and vandalism. The implication is tragic, but
undeniable: If police are to curtail crime, they will inevitably
interact more with some racial groups than others.
Racial crime rates affect traffic-stop disparities most directly by
shaping patterns of police deployment. If the police concentrate their
activity in a relatively small number of neighborhoods, drivers there
will have a higher chance of being stopped for traffic violations than
drivers in less heavily policed areas. If these neighborhoods have
relatively large minority populations, the share of minority drivers
pulled over will be relatively high.
Minneapolis police do precisely this. The city is divided into 84
residential neighborhoods for purposes of law enforcement and
administration. During the traffic stop study, 12 of these
neighborhoods accounted for 50 percent of the city's crime, while a
mere 5 neighborhoods-home to one-quarter of the city's black
population-accounted for one-third of its crime. (These figures reflect
calls for police assistance, a proxy for crime.) Under CODEFOR, the
computerized crime-fighting strategy launched in January 1998 by police
chief Robert Olson and mayor Sharon Sayles Belton, officers and squad
cars are concentrated in high-crime neighborhoods, and traffic stops
there are important to maintaining order. The stops assist officers in
their effort to get guns and drugs off the street, discourage
robberies, find stolen cars, and find people wanted for arrest.
In April 2001, an independent agency under contract with the
Minneapolis Police Department released an analysis of the city's raw
traffic-stop data. The report found that stops of black drivers were
heavily concentrated in the city's five highest-crime neighborhoods. It
also found strong evidence that racial disparities in stops were due to
more intensive overall policing in such neighborhoods, rather than to a
tendency on the part of officers there to conduct more traffic stops
than their peers patrolling elsewhere. However, the report also cited a
need for additional data. Its findings were largely ignored. Despite
this evidence that neighborhood crime rates are the chief explanation
for racial disparities in traffic stops, Minnesota's media and activist
groups continue to point to police bias as the culprit, portraying it
as a serious civil liberties problem that requires urgent
countermeasures.
One real and very negative consequence of the irresponsible,
ideologically driven use of traffic-stop studies-and they are likely to
remain the preferred tools of police critics for some time to come-is
the growing public belief that police bias is widespread. Among
minorities, the perception of bias is undermining police authority and
dissuading young citizens from joining police forces they insist harbor
racist thugs. Defense attorneys, too, seek to discredit police actions
by routinely invoking racial profiling in court. This ploy appears to
be increasingly successful, especially in drug-related cases.
Most seriously, however, the perception of police bias is
generating pressure for de facto racial quotas in all law enforcement
activities, from traffic stops to searches to arrests. A Clinton-era
law compounds the problem by giving the justice Department power to sue
local police departments for tolerating ``a pattern and practice'' of
misconduct in racial matters. (The feds are unlikely to suspect such a
pattern, of course, if de facto racial quotas govern stops and
arrests.) In the last few years, both Pittsburgh and Los Angeles have
sought to avoid action under this law by agreeing to federal oversight
of their law enforcement activities. Currently, the spotlight is on
racially troubled Cincinnati, where the American Civil Liberties Union
has filed suit alleging a 30-year pattern of racial profiling.
Together, the trends toward racial quotas and federal oversight
threaten to undermine local control of law enforcement and roll back
the nation's recent striking gains in public safety.
By their nature, quotas are contrary to the fair, responsible
exercise of professional judgment on the part of police, which alone
can build confidence in law enforcement over the long haul. The
rhetoric of racial profiling and the pseudo-science of traffic-stop
studies, though deployed in the name of justice, actually inflame
mistrust between police and citizens. Regrettably, they are driving the
agenda of the activists further from the agenda of the people, who
crave more than anything the right to walk safe streets.
Leadership Conference on Civil Rights,
Washington, D.C.,
July 31, 2001
The Hon. Russ Feingold
United States Senate
716 Hart Senate Office Building
Washington, DC 20510
Dear Senator Feingold:
The Leadership Conference on Civil Rights, a coalition of over 180
national organizations working to advance civil rights laws and
policies, is pleased to endorse S. 989, the End Racial Profiling Act of
2001. We look forward to working with you to ensure enactment of this
critically important legislation.
The reliance by law enforcement agents on race, ethnicity or
national origin to determine whom to target for criminal investigation
violates our nation's basic constitutional commitment to equal justice
under law. Racial profiling is also contrary to effective law
enforcement--police practices that result in disproportionate stops of
minority pedestrians or motorists generate resentment among minority
citizens and undermine the respect and trust that is essential for
successful community policing.
We have no doubt that the majority of law enforcement officer
discharge their duties with; honorable intentions. Nonetheless,
empirical evidence from around the nation reveals that profiling by
federal, state, and local law enforcement agencies is widespread.
Despite efforts by some state and local governments to address this
problem, federal legislation is necessary.
We are gratified that you and the other sponsors of S. 989
recognize the need to wove beyond mere study of the issue of racial
profiling, and have crafted a bill that takes direct aim at this
pernicious practice. Consistent with President Bush's declaration to
Congress that racial profiling ``is wrong and we will end it in
America,'' S. 989 bans racial profiling and provides meaningful
enforcement of that prohibition. The bill also provides state and local
law enforcement. agencies with resources to implement procedures that
can prevent racial profiling, including data collection. S. 989 is a
balanced and comprehensive . solution to a problem that strikes at the
heart of our basic constitutional guarantees.
``Equality In a Free, Plural, Democratic Society"
We thank you for introducing S. 989, and we stand ready to assist
you in any way as the bill moves through the legislative process.
Sincerely,
Wade Henderson
Executive Director
Dorothy I. Height
Chair
Mexican American Legal Defense and Educational Fund, Washington, D.C.,
July 31, 2001
Dear Chairman Russ Feingold and Ranking Member Strom Thurmond:
RE: S. 989--The End Racial Profiling Act of 2001
I write this letter on behalf of the Mexican .American Legal
Defense acid Educational Fund (MALDEF), a national non-profit non-
partisan organization dedicated to promoting the civil rights of the 35
million Latinos living in the United States. Chicago REF endorses The
End Racial Profiling Act of 2001, introduced by Senator Feingold in the
Senate, and urges that the members of the Judiciary Subcommittee on the
Constitution, Federalism and Property Rights support the bill as well.
Racial Profiling of Latinos by Federal, State, and Local Law
Enforcement is a Regional Office National Problem
The following are several examples that support the conclusion that
racial profiling of Latinos is a national problem.
According to a report by the Leadership Conference on Civil Rights,
immigration laws have been more selectively enforced by the Immigration
anal Naturalization Service (INS) against Latinos than any other group.
Ninety percent of those subjected to INS enforcement actions are
Latino, even though Latinos constitute 60% of all undocumented persons
in the U.S. Leadership Conference on Civil Rights, Justice on Trial:
Racial Disparities in the American Criminal Justice System 4 (2000).
According to a poll conducted by The Washington Post, Kaiser
Foundation, and Harvard University, in response to the question, ``Have
you ever been unfairly stopped by police because of your race or ethnic
background?,'' 20% of Hispanies responded ``Yes'' compared to only 4%
of white non-Hispanics. Richard Morin & Michael H. Cottman,
Discrimination's Lingering Sting, WASH. POST, June 22, 2001, at Al.
In a review by The New York Times of a random sample of work site
raids conducted by the INS New York District office, the Times found
that 81 % of the raids were carried out after the agents who conducted
the raids used factors such as ``skin color, use of Spanish, foreign
accents and clothing `not typical of North America' as primary evidence
that the workers were likely to be undocumented.'' As a result, 96% of
the 2,907 persons arrested in the work; site raids were Latino even
though Latinos do not represent 96% oaf the undocumented population in
the New York District. Susan Sachs, Files Suggest Profiling of Latinos
Led to Immigration Raids, N. Y. TIMES, May 1, 2001, at B1.
In areas of the country where there is new and rapid growth of the
Latino community, local law enforcement officials are using racial
profiling as a method to enforce the law. As one example, MALDEF
brought suit on March 23, 2001 against the City of Rogers, Arkansas,
and its police on behalf of three named Latino plaintiffs and a class
of similarly situated individuals for violations of their Fourth and
Fourteenth Amendment rights under the U.S. Constitution. The plaintiffs
in the case allege that, not only was there no apparent justification
for the stops made by police, they were improperly asked for
immigration papers and their social security card, simply because they
were Latino. T3Lopez, et al. v. City of Rogers, Arkansas, et al., USDC
No. 01-5061, Western District of Arkansas, Fayetteville Division.
MALDEF has received similar complaints from Alabama and Tennessee.
s. 989 title i's general prohibition on racial profiling is needed,
will not impede effective law enforcement activities, and will reduce
violations of individual rights
The following is a vivid example of how reducing the use ofracial
profiling does not impede effective law enforcement activities but does
reduce the number of civil rights' abuses.
After a GAO study revealed that U.S. Customs Service inspectors
used racial profiling to target persons suspected of smuggling drugs,
the Service made major revisions in its policies and practices to
reduce the use of racial profiling. As a result, 16,000 fewer black and
Latino travelers were subjected to pat downs, X-rays, and other body
searches last year compared to 1998 data. Overall, the total number of
body searches dropped 80% froze 1998 to 2000. At the same time, drug
seizures increased 38% since 1999. Lori Montgomery, New Police Policies
Aim to Discourage Racial Profiling, WASH. POST, June 28, 2001, at Al.
s. 989 title ii's prohibition on; racial profiling by federal law
enforcement as well as requirements that policies and practices be
adopted to eliminate racial profiling are needed
The examples above demonstrate the use of racial profiling by the
INS and the U. S. Customs Service. There are other federal agencies,
such as the Drug Enforcement Administration and the Federal Bureau of
Investigations that may also be using racial profiling. The federal
government should be leading the country by example by prohibiting
racial profiling, collecting data on investigatory activities, ensuring
a legitimate complaint process is in place, and disciplining agents who
engage in racial profiling, all requirements set forth in Title II of
S. 989.
s. 989 title iii's prohibition on racial profiling by state and local
law enforcement as well as requirements that policies and practices be
adopted to eliminate racial profiling are needed
Many state and local jurisdictions have not adopted a prohibition
on racial profiling. Only approximately 13 states have passed laws
requiring police to collect traffic-stop data. Lori Montgomery, New
Police Policies Aim to Discourage Racial Profiling, WASH. POST, June
28, 2001, at A1. About 400 out of 18,000 police agencies nation-wide
are collecting such data. ,Id. Many jurisdictions throughout the
country do not have effective complaint or disciplinary procedures. The
prohibition and requirements of Title III of S. 989 would address these
concerns.
Title III would not infringe on states' rights since the only
jurisdictions that would be subject on a mandatory basis to the
provisions of Title III would be those jurisdictions that apply and
receive .federal grants from the federal programs set forth in the
proposed bill. The federal funds covered under Title III's mandatory
provisions are set forth in Title V of S, 989. In addition, Title III
provides additional development grants for which state and local
jurisdictions can apply to further develop the best policing practices.
s. 989's title iv's requirement that the attorney general submit
reports to congress on racial profiling by federal, state, and local
law enforcement agencies is appropriate
As the leading law enforcement official in the country, the
Attorney General is often asked to monitor the federal agencies as well
as state and local law enforcement agencies to ensure that the laws are
being implemented fairly. Since under S. 989, the federal, state and
local agencies will be required to submit reports to the Attorney
General, the Attorney General will be in the best position to collect
the data and submit them to Congress. Congress, in turn, can continue
to monitor the prevalence of the use of racial profiling on a national
level to determine if further legislation is needed to address this
matter.
It is our hope that the Subcommittee will support S. 989 a9 a
needed and effective strategy to begin addressing the national problem
of racial profiling by federal, state and local law enforcement. Until
the use of racial profiling is adequately addressed, the civil rights
of Latinos will continue to be violated. Furthermore, these violations
create a feeling of distrust of the legal system and law enforcement
within our community, thus compromising the public safety of the
communities where we live.
In addition to the examples provided in this letter, we have also
conducted legal analyses in the area of racial profiling and would be
willing to provide such analyses in areas requested. Should you have
further questions or requests, please do not hesitate to contact
MALDEF's Regional Counsel in Washington, D.C., Marisa Demeo, at 202-
293-2828.
Sincerely,
ANTONIA HERNANDEZ
President and General Counsel
Article Lori Montgomery, Washington Post, June 28, 2001
New Police Policies Aim to Discourage Racial Profiling
A troubling self-portrait has emerged a year after hundreds of
police agencies began investigating the use of racial profiling by
their officers, and a growing number of departments are responding with
policies to discourage harassment of innocent minority travelers.
In Washington state, the highway patrol plans to use its data to
question and discipline individual troopers whose records suggest
racial profiling. The former chief also canceled awards for drug
arrests, saying they may encourage troopers to use profiles instead of
focusing on hazardous drivers, thus rewarding ``the wrong kind of
behavior.''
In San Diego, city police have hired academic consultants and plan
to convene focus groups to try to understand why officers stop and
search black and Hispanic drivers at rates far higher than white
drivers.
And last month, the California Highway Patrol declared a six-month
moratorium on consent searches, the focus of a 'class-action lawsuit by
the American Civil Liberties Union, which says the searches
disproportionately target minorities. Troopers must now develop
probable cause of criminal activity before searching a vehicle, instead
of relying on driver consent.
Some officers think ``we're giving up the store'' by voluntarily
halting consent searches, said CHP Commissioner D.O. ``Spike'' Helmick.
``But it's incumbent upon us to stand back and look at what we're
doing.''
The U.S. Customs Service appears to be the first agency to
significantly reduce the number of minorities searched for contraband.
After enacting far-reaching reforms that include requiring supervisory
approval for every intrusive search, Customs slashed body searches by
nearly 80 percent at the nation's airports from 1998 to 2000 and has
increased drug seizures by 38 percent since 1999.
Long accused of inappropriately targeting black and Hispanic air
passengers, Customs is providing strong evidence, analysts say, that
good police work can spare minority travelers the indignity of criminal
suspicion.
Meanwhile, numerous police chiefs across the nation have been
genuinely troubled by the portraits their data paint. And many are
proving willing to probe deeper.
``Some departments are still saying, `No, we're not doing it,' even
though the numbers show something different. But a fair number of
departments are now saying, `This is something that undercuts our
ability to serve all of our clients, and we want to know what's going
on and what to do about it,' '' said John Lamberth, a psychology
professor at Temple University and a leading analyst of racially biased
police practices.
Racial profiling emerged as a national concern after widely
publicized incidents indicating that police use ethnicity and skin
color to make law enforcement decisions. A recent Washington Post
survey found that more than half of black men and one in five Hispanic
and Asian men say they have been victims of racially biased policing.
In February, President Bush told Congress that racial profiling
``is wrong, and we must end it.'' At least 13 states--including
Maryland--have passed laws requiring police to collect traffic-stop
data. The Clinton administration ordered a variety of federal agencies
to keep similar data.
At least eight agencies are collecting data by order of a federal
court or under agreement with the U.S. Justice Department. Among them:
the Montgomery County police, Maryland State Police and New Jersey
State Police, which brought the profiling debate to a boil when two
troopers opened fire on a van carrying four unarmed black and Hispanic
men on the New Jersey Turnpike in April 1998.
In all, about 400 of the nation's 18,000 police agencies are
collecting data, according to researchers at Boston's Northeastern
University. About half have completed their first reports, said Amy
Farrell, of Northeastern's Center for Criminal Justice Policy Research.
Regardless of what the numbers show, the ``overwhelming
conclusion'' has been that ``we don't have a problem,'' Farrell said.
Many police remain deeply wary of data collection, arguing that
statistics fuel allegations of racism without offering clear solutions.
No one has come up with a satisfactory method for identifying the
racial makeup of a patrolled population--drivers on Interstate 95, for
example--making it difficult to interpret the data.
Among the skeptics is Maryland State Police Superintendent David B.
Mitchell. In 1995, an ACLU lawsuit forced the Maryland police to became
the first major department in the nation to collect data on traffic
stops.
Since then, Mitchell has enacted reforms that have cut searches of
minority drivers. But he has refused to address lingering questions
about why cars driven by minorities still make up more than 60 percent
of vehicle searches on I-95, dismissing the numbers as a reflection of
the broader reality that minorities are more often arrested for crimes.
``The issue of race is easy to raise and frankly hard to defend
against,'' Mitchell said. ``This is not a perfect world. Our numbers
are never going to be perfect.''
That attitude is still common in the law enforcement community.
What's different now is that a vanguard of ``smart departments'' are
taking action to improve their statistics, Farrell and others said.
The U.S. Customs Service is leading the pack.
``There's no doubt about it: They're doing a better job,'' said Ed
Fox, a lawyer who represents 90 black women who sued Customs after
being frisked or worse in 1997 and 1998 at Chicago's O'Hare
International Airport. ``They've stopped picking on the people who
don't carry drugs.''
The transformation began in the late 1990s, after a spate of
lawsuits accused Customs inspectors of singling out minority air
passengers, particularly women, for strip-searches. The most notorious
case involved Amanda Buritica, a Hispanic school crossing guard from
Port Chester, N.Y., who was stopped in San Francisco on her way home
from Hong Kong.
Buritica was handcuffed, transferred to a hospital and forced to
swallow powerful laxatives that caused her to move her bowels 28 times.
No drugs were found. After 25 hours, Buritica was released without so
much as an apology.
Customs has broad constitutional authority to defend the nation's
borders, including the power to search anyone and anything entering the
country. Top officials were largely unconcerned by cases like
Buritica's, said Raymond W. Kelly, Customs commissioner at the time.
``Their feeling was: `Hey, it's a legal deal. We're winning the
lawsuits,' '' Kelly said in an interview. But Kelly was appalled. ``My
response was: `Yes, you're winning the lawsuits, but you're abusing
U.S. citizens. Just because you have the power to do something doesn't
mean you should do it.' ''
Kelly ordered inspectors to begin keeping detailed records on
passenger searches, which were delivered to him each morning. Then he
used the threat of a congressional inquiry into allegations of racial
profiling, looming in May 1999, to persuade officials to adopt far-
reaching reforms.
No longer could inspectors touch anyone without a supervisor's
approval. If there was reason to believe a passenger had swallowed
drugs, only the port director could authorize removal to a medical
facility.
Port directors were ordered to consult a lawyer before approving X-
rays or monitored bowel movements and to reassess detentions every few
hours.
Kelly also made it more difficult to justify searches. He banned a
list of 80 triggers that branded virtually anyone a potential drug
courier, including passengers who were uncooperative or too
cooperative, nervous or too calm, wearing sunglasses or bulky clothing.
``If you're stopping a disproportionate number of minorities, there
may be good reasons for it. But they have to be articulated,'' Kelly
said. ``People should not be searched just because of a vague notion in
some inspector's head.''
Finally, Kelly acted to make searches less intimidating. Inspectors
must now tell passengers the reasons for the search, offer to call
relatives if detention lasts more than two hours, pay for hotels and
missed flights and give searched passengers a comment card pre-
addressed to Customs headquarters.
At first, inspectors were wary. Searches plummeted, along with drug
seizures. ``There was a feeling that we'll never make another seizure
out here again,'' said Robert Meekins, deputy port director at John F.
Kennedy International Airport.
But inspectors soon realized Kelly was not trying to identify
scapegoats, Meekins said. The result: Pat downs, X-rays and other body
searches dropped from more than 40,000 in 1998 to fewer than 10,000
last year. Seizures of drugs and contraband rose from 4 percent of
searches in 1998 to nearly 18 percent so far this year.
Minorities still account for more than two-thirds of searches, a
fact that may never change, Kelly said. Flights from Jamaica, Colombia,
Africa and the Caribbean produce the vast majority of drug seizures,
and those flights tend to be packed with black and Hispanic travelers,
Customs officials said.
But compared with 1998, nearly 16,000 fewer black and Hispanic
travelers were physically accosted last year, according to Customs
data. The case of a recent arrival to JFK from Ecuador illustrates how
the new system works.
The man said he flew to New York to see the sights. But when
pressed by a Customs inspector, he couldn't name a single sight, not
even the Statue of Liberty. He claimed to be a professional
photographer but knew nothing about lenses or light. He said his ticket
was purchased in Chile, but records showed it came from Uruguay. And he
had no idea what the ticket cost or whether it was paid for by credit
or with cash.
After extensive questioning, a supervisor approved a pat down.
Nothing. So at 12:30 a.m., the beeper dangling from a scrunchie on
Susan T. Mitchell's bedpost began to bleat. Mitchell, the Customs port
director at JFK, consulted an equally groggy lawyer and authorized an
internal search.
``You don't disturb the port director unless you have a really good
feeling, especially if it's 2 a.m.,'' said Mitchell, who gave the go-
ahead to X-ray the ersatz photographer, who passed balloons containing
nearly a kilo of heroin just before dawn. ``Inspectors go to great
lengths to verify your story so they can say goodbye.''
Kelly, a former New York City police officer, believes Customs
offers a model for other police agencies. A growing number of officers
share his belief that police cannot ignore the allegations of racial
profiling.
``When the issue of profiling first came up, I went into police
seminars where there was a lot of denial in the room. People were
saying, `This is not happening. This is a witch hunt,' '' said former
Washington State Patrol chief Annette Sandberg, who ordered the agency
to begin collecting data in 1999.
``Given racial tensions across America,'' Sandberg said, ``you have
to be responsive to the community. We have to have the data to prove we
deal with the bad cops and stand behind the good ones. And most people
can live with that.''
Article by Richard Morin and Michael H. Cottman, Washington Post, June
22, 2001
Discrimination's Lingering Sting; Minorities Tell of Profiling, Other
Bias
More than half of all black men report that they have been the
victims of racial profiling by police, according to a survey by The
Washington Post, the Henry J. Kaiser Family Foundation and Harvard
University.
Overall, nearly 4 in 10 blacks--37 percent--said they had been
unfairly stopped by police because they were black, including 52
percent of all black men and 25 percent of all black women.
Blacks are not the only Americans who say they have been the
targets of racial or ethnic profiling by law enforcement. One in five
Latino and Asian men reported they had been the victims of racially
motivated police stops.
But racial profiling is only one of many examples of intolerance
that minorities say they continue to confront. More than a third of all
blacks interviewed said they had been rejected for a job or failed to
win a promotion because of their race. One in five Latinos and Asians
also said they had been discriminated against in the Workplace because
of their race or ethnicity.
Overwhelming majorities of blacks, Latinos and Asians also report
they occasionally experience at least one of the following expressions
of prejudice: poor service in stores or restaurants, disparaging
comments, and encounters with people who clearly are frightened or
suspicious of them because of their race or ethnicity.
``These are precisely the kinds of incidents that contribute to
what is coming to be called black middle-class rage--the steady
occurrence of slights and put-downs you know in your gut are tied to
race but that rarely take the form of blatant racism,'' said Lawrence
Bobo, a professor of Afro-American studies and sociology at Harvard
University. ``No one uses the N-word. There is not a flat denial of
service. It is insidious, recurrent, lesser treatment.''
A much smaller proportion of whites also say they have been victims
of discrimination: One out of every three reported that they sometimes
face racial slurs, bad service or disrespectful behavior.
Claims and counterclaims about the prevalence of racial profiling
have been made for years. But there have been few reliable attempts to
estimate the degree to which blacks, Latinos and Asians believe they
have been victims of the practice. And no national data exist that
firmly document the pervasiveness of the practice, making it impossible
to compare perceptions with actual incidence.
For this survey, the latest in a series of polls on public policy
issues conducted by The Post, the Henry J. Kaiser Family Foundation and
Harvard University researchers, 1,709 randomly selected adults were
interviewed by telephone from March 8 through April 22. The sample
included 315 Hispanics, 323 blacks and 254 Asians.
The margin of sampling error for the overall results is plus or
minus 3 percentage points. It is plus or minus 6 points for blacks, 7
points for Latinos and 9 points for Asians.
Widely publicized incidents around the country have drawn attention
to the targeting of minorities by police, a practice some police
officials have tried to justify by arguing that minorities are more
likely to commit crimes. President Bush told Congress in February that
``it is wrong, and we must end it.'' Sen. Russell Feingold (D-Wis.) and
Rep. John Conyers Jr. (D-Mich.) recently introduced companion bills in
the Senate and the House that would withhold funding from agencies that
engage in racial profiling.
And suddenly, from New Jersey to California, victims of unwarranted
police stops and harassment are telling their stories and, for the
first time, are being heard.
Kinte Cutino, 24, a house painter in New Haven, Conn., said he was
riding his bike when a police officer pulled him over. ``He asked where
I was headed, and I told him. He searched me, and didn't find anything
and then he let me go.''
Cutino shrugged off the encounter. ``They will stop you in certain
areas, and if you're black, most likely you will get stopped,'' he
said. ``You can't do anything about it. That's just the way it is.''
Tommy Thorne would seem to be an unlikely target of police
attention. Thorne, 62, is a retired Army lieutenant colonel who
recently retired as director of an engineering company in Portland,
Ore.
But last year, he and his wife were driving through the Mojave
Desert on a vacation trip to Las Vegas. When he pulled his Cadillac
Eldorado out of a gas station, ``a police car was on my bumper; he was
real close. When I turned, he turned; when I changed lanes, he changed
lanes. He kept following me.
``Finally I pulled over and waited five minutes. And he stopped.
When I pulled off, he followed me again and then came barreling up
alongside me and started pulling ahead of me, and backing off, and
pulling ahead.''
Thorne said the officer's intimidating behavior continued for
several more miles, and then the officer backed off. ``He never pulled
me over or issued a summons. It just irritated me. And there was
nothing I could do about it. I think he saw a black guy in the desert
and thought I was a drug dealer. Who knows? But I guess if you're black
and male, at some point it's going to happen to you.''
Steve Jaime, a guest services manager at a suburban Chicago hotel,
recalled the night that he and some friends were coming home from the
Taste of Chicago food festival when the police stopped their car in a
predominantly Hispanic neighborhood. Without explanation, the officers
ordered them out of their car.
``That's when the police officer put a gun to my head while he was
checking me out,'' said Jaime, who is Mexican American. Then the
officers abruptly told Jaime and his friends to go. ``They were pissed
off about something and they took it out on us, because we were
Hispanic.''
The survey found that other forms of racial intolerance are
commonplace. More than 8 in 10 blacks and two-thirds of all Latinos and
Asians say they occasionally experience at least one of these four
intolerant acts: poor service, racial slurs, fearful or defensive
behavior, and lack of respect. Two-thirds of all blacks and nearly half
of all Latinos anti Asians say they experience two or more of these
forms of intolerance from time to time.
Sometimes these ugly moments provoke anger, as when a waiter in an
expensive steakhouse asked Earl Arredondo, a 30-year-old Latino from
Harlingen, Tex., if he could afford the $ 32 rib-eye steak he had just
ordered and later dismissively asked him if he knew ``what calamari
is.''
And sometimes they provoke fear, as when a carload of drunken
whites pulled to a stop alongside Martha Matsuoka, an Asian American
who lives in Los Angeles. Then they threw beer bottles at her and
demanded that she ``go home'' and ``buy American.''
I understand these kinds of things rationally, but personally I was
stunned,'' said Matsuoka, 39, a graduate student at the University of
California at Los Angeles. ``It was so real. On a personal level, my
mother was upset. She said she had hoped that I would never have to
experience anything like that.''
The prejudice reflected in these incidents is clear. In other
instances, perceptions may not reflect reality: An honest error or an
unintended slight may be misconstrued as an act of racial intolerance.
But Harvard's Bobo cautions that it would be dangerous to dismiss
the bulk of these claims as misperceptions or misunderstandings.
``These feelings of victimization are not arrived at easily, or because
they are pleasant feelings to hold,'' he said. ``We have to regard them
as indicators of a very real social phenomenon. For example, blacks
complained for years that they were being targeted by police and were
ignored. Only finally, when a cannon-load of data was shot across the
bow, did people begin to say, 'Oh, yeah, I guess it's going on.' ''
Blacks confront far more discrimination than either Latinos or
Asians, the survey found. And black men report facing prejudice more
often than black women. Nearly half--46 percent--of all blacks said
they had experienced discrimination in the past 10 years; including 55
percent of black men and 40 percent of black women.
Two years ago, Ali Barr, a television engineer in Atlanta, said he
was in Baltimore on business and went to a jazz bar and restaurant with
friends to get something to eat.
``It was a white bar, but it featured a black jazz band,'' Barr
said. ``But from the moment we walked in, we could feel the hostility.
All the patrons were white. The waitress comes over and tells us we
couldn't sit in the section we-were in. She said it was closed until
later in the evening.
``But there were only 10 people in the bar, so we moved to the
other section and we asked for coffee. She came back and slammed the
coffee down and came back with the manager. The manager said we were
not welcome here and that our money wouldn't be accepted.
``The manager pointed to a sign saying that management reserved the
right to serve who they wanted. We were asked to leave. All we wanted
was something to eat. We were totally discriminated against. That will
always be my memory of downtown Baltimore.''
Four in 10 Latinos and Asians reported that they, too, had been
discriminated against in the past 10 years.
Laticia Villegas, 27, owns a children's clothing store in Fort
Worth. She recently tried to write a check at a supermarket. The white
clerk refused to let her borrow or even touch her pen. Villegas fished
around in her purse and wrote the check.
``It is culture shock,'' Villegas said. ``I've never been
discriminated against until I moved to Dallas [from San Antonio]. I was
offended and surprised; I didn't expect it. I'm not used to being
treated this way. I thought we got past this, but we haven't, and I
know my [1-year-old] daughter will have to grow up experiencing these
kinds of things because she does not have blond hair and blue eyes.''
About 1 in 5 whites--18 percent--also report being the victims of
discrimination in the past 10 years. Ten percent said they had been
denied a promotion because of their race or ethnicity, 14 percent said
they had received poor service because of their race, and an equal
proportion reported having been called names or insulted.
Rose Evans, 26, of Aurora, Colo., said she has frequently been the
target of racially prejudiced comments from Latinos and blacks.
Evans grew up West Denver, a predominantly Mexican American and
Asian neighborhood where ``I was picked on quite a bit. You know,
'stupid white girl' and worse things in Spanish. But my stepdad is
Mexican American, and I learned to let it roll off of me.''
Earlier this year, her 9-year-old daughter confronted prejudice.
``A group of little black girls at school were picking on her a lot,
calling her 'honky and stuff. She would come home from school crying. I
told her to ignore them, they were just ignorant people.''
But the bullying continued, and Evans requested a meeting with
school officials and the mother of the girl who had been particularly
vicious to her daughter.
``The mother became very hostile and started calling me `white
trash' and ``honky and other stuff,'' Evans said. ``I told her children
aren't born ignorant, they acre taught it, and I saw where her daughter
got it from.''
Assistant director of polling Claudia Deane contributed to this
report.
Statement of National Association of Police Organizations, Inc.,
Washington, D.C.
STATEMENT OF POLICY AND POSITION
general statement
Representative John Conyers, Jr. (D-MI) has introduced H.R. 2074
and Senator Russ Feingold (D-WI) has introduced S. 989 both entitled
the, 'End Racial Profiling Act of 2001,' which would require the
Justice Department to perform a nationwide study of alleged racial
profiling on the nation's highways and roads. If JIM THOMPSON enacted'
the bill would require the Attorney General to conduct a study of stops
for Treasurer routine traffic violations, forcing police officers to
record data such as: the number of individuals stopped, including race,
ethnicity, age and gender; the reason for the stop (the alleged
criminal behavior or traffic offense); warnings and citations issued;
weather there was a search (and if so, any items seized); weather there
was an arrest; and the duration of the stop. The bill contains a very
limited prohibition on the use of the data, which could result in data
being used against municipalities and officers in lawsuits or against
officers in disciplinary actions.
The National Association of Police Organizations (NAPO),
representing more that 220,000 sworn law enforcement officers through
4,000 unions and associations from across the nation, is strongly
opposed to this legislation. This or any similar legislation which
would monitor law enforcement officers and require them to obtain
detailed data on alleged racial profiling by officers 1) is not needed;
2) is likely to increase hostility to officers; 3) is unlikely to
produce any meaningful data; 4) is likely to threaten officers and
their agencies with more frivolous lawsuits, seeking not only damages
but possible strict regulation of when and who officers may stop; and
5) would have other serious long term consequences for law enforcement
by deterring officers and preventing them from carrying out their
responsibilities effectively and fairly.
Let it be emphasized that NAPO condemns any instances of blatant
racial discrimination by law enforcement officers. This includes
pulling over an automobile, searching personal property or detaining an
individual, when based on the individual's race or ethnicity and not on
probable cause. While we believe these instances are few and limited,
any such incident is inexcusable.
NAPO urges law enforcement and members of the general public,
including individuals who belong to a racial or ethnic minority, to
come together to discuss any isolated patterns of racial profiling and
to search for solutions rather than create problems by enacting this
legislation. We must always be mindful of the progress of law
enforcement in reducing crime. We must always ask the question: As the
nation's violent crime rate continues to decrease, is it acceptable to
change those aggressive police practices consistent with constitutional
requirements, that have contributed to this significant reduction in
crime?
points in support of napo's policy and position
The legislation is not needed as there are already adequate
protections and remedies in place against racial, ethnic, gender or age
profiling. The presumption underlying the legislation is fallacious;
the constitutional requirements of probable cause and articulable
reasonable suspicion serve as checks on stops, searches and detentions
to prevent racial, ethnic, gender or age profiling; and there are
adequate remedies in current law to investigate and punish officers
that engage in such profiling.
The Bill is based on two incorrect presumptions: first, that law
enforcement officers routinely throughout the United States stop racial
and ethnic minorities of color for traffic violations purposely to
discriminate against such individuals, and second, that the number of
traffic citations issued or arrests made (for more serious offenses,
such as drug trafficking) are highly and unjustifiably
disproportionate, as compared to numbers of citations for individuals
whose color is white. These premises are erroneous. Other than a few
anecdotes in a few states, there is no evidence to substantiate the
premise for this bill. Often police officers do not know the race or
ethnic background of an individual when they see a traffic offense,
especially at night. Officers are trained to immediately pursue a
vehicle for a traffic infraction or other violation, irrespective of
the driver's appearance.
There are essential constitutional safeguards against racial
profiling during traffic stops in place, specifically `probable cause'
to believe that an offense or crime has been committed or `articulable
reasonable suspicion' that an individual is dangerous. Violations of
those standards can result, not only in the exclusion of evidence for
one charged with a crime, but a federal civil rights lawsuit against
the officer or the officer's department or disciplinary actions against
the officer, as does often occur.
Individuals should understand that being stopped by law enforcement
officers when they have good reason to do so, should not cause those
stopped to believe that their rights were violated, even if they are
inconvenienced. The application of constitutional safeguards means that
whenever drivers of any race, ethnicity, gender or age have been pulled
over by officers with probable cause to make those traffic stops, and
it turns out that the drivers have done nothing wrong, they are then
free to go. As a society, sometimes law-abiding citizens will be
inconvenienced when police aggressively enforce laws and investigate
crimes.
The U.S. Department of Justice has significant authority to
investigate allegations of law enforcement officer misconduct and
violations of constitutional rights to determine if there is a 'pattern
or practice' of misconduct, which deprives individuals of
constitutional rights. (Currently, the Department has several
investigations underway.) If the Department finds such misconduct, it
may collect data on traffic stops and sue the government agency
involved to obtain an injunction or other relief. The Department has
brought lawsuits, obtaining consent decrees in Pittsburgh, PA,
Steubenville, OH and Los Angeles, CA, memoranda of understanding in
Battle Creek, MI and Montgomery County, MD and a non-discrimination
resolution in Portland, OR. The 19 investigations initiated by the
Department of Justice does not constitute a national problem in the
19,000 plus state and local law enforcement agencies.
If passed into law, the nationwide study and officer reporting form
provided by the bill would lengthen traffic stops, encounter resistance
from drivers and passengers, subject officers to potential hostility
and possible violence from drivers and passengers, and would place
other burdens on law enforcement officers.
To obtain and verify the information required by the bill, a police
officer would often have to ask a driver (and any passengers) about
race or ethnicity and age. The officer could be expected to meet
resistance and hostility to such questions, because many individuals
would likely consider such questions about personal characteristics as
highly offensive.
The proposed questions could turn a traffic stop into a dangerous
situation, by escalating the tempers of the occupants when race or
ethnicity is brought into the discussion. Pulling over a car for a
traffic violation is one of the most vulnerable moments for a law
enforcement officer. The statistics on the numbers of officers killed
or feloniously assaulted in the line of duty during traffic stops
confirm this danger.\1\ An officer's life would be put at risk, being
subjected to hostility, ridicule and potential violence, in which case
the officer might conceivably have to act in self-defense.
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\1\ Since the advent of the automobile, approximately 300 law
enforcement officers are known to have died during traffic stops and
approximately 80% of those officers were shot to death.
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The time necessary to fill out these forms would take away from
other law enforcement efforts. For each stop the officer would fill out
a detailed form with information including the reason for the stop,
whether information about immigrant status was asked, whether a search
was instituted and, if so, how it was conducted, the rationale for the
search and the nature of any contraband.
It is unclear whether the data would be accurate and comprehensive
and what the study would prove. There is a serious question as to
whether the study would be worthwhile to prove or disprove police
profiling based on race, ethnicity, age or gender. As proposed, this
study would have a weak statistical basis.
If the study focuses on inner city police departments, it would
indicate a greater number of minorities stopped as compared with
suburban police departments, reflecting the population makeup of those
communities. The study would reveal the obvious. If a study was focused
on a college town, the study would show a greater number of individuals
between the ages of 18-25 being stopped.
It is inconceivable that the data will be accurate unless an
officer is able to verify racial and ethnic background and the violator
responds cooperatively. If some of the drivers stopped for a traffic
offense do not want to cooperate and provide this personal information,
the data would be skewed and inaccurate.
The bill threatens to produce unnecessary and frivolous litigation
against the regulation of law enforcement officers and their agencies.
Similar legislation proposed and passed by the U.S. House of
Representatives in 1998 was amended to limit the use of the data
obtained from the study to only research and statistical purposes, and
to prohibit, its use for any other purpose, including any legal or
administrative proceeding to establish inferences of racial
discrimination. Under the current legislation, lawsuits could be
brought against municipalities, their police or sheriffs' departments
and individual officers or to impose disciplinary action on officers,
based on data from the study and not on identified cases of
discrimination. The current legislative proposal would also enable a
group of lawyers to obtain the data, supported by organizations
actively eliciting information against law enforcement who make their
living by suing police officers across the country and then recovering
their legal fees from the defendants.
If enacted, this legislation could very well lead to unofficial
practices by law enforcement officers of reverse discrimination or
unofficial parity based on race, ethnicity, age or gender, both during
the study and afterwards. We do not believe that most Americans want
their government agencies to adopt and apply these practices which
could include, 1) a lower standard of probable cause being applied to
Caucasians and a higher standard being applied to individuals of color
or, 2) a percentage limitation on the number of traffic tickets written
or individuals detained because of suspected criminal activity. In
summary, law enforcement officers across the country could be deterred
from making traffic stops or conducting searches when there is
justification to do so, solely based on identifying characteristics of
drivers. This would send the wrong message to criminals across the
country and would likely increase crime.
Statement of National Council of La Raza, Washington, D.C.
I. INTRODUCTION
Chairman Feingold, Ranking Senator Hatch, and the other Senators of
the Subcommittee, on behalf of the National Council of La Raza (NCLR),
thank you for holding this hearing on an issue that is very important
to the Latinol \1\ community in the Unites States. NCLR is the largest
national Latino civil rights organization, which serves as an
``umbrella organization'' for more that 250 local affiliate community-
based organizations (CBO's) and 30,000 associate members. In addition
to providing capacity-building assistance to our affiliates and
essential information to our individual associates, NCLR serves as a
voice for all Hispanic subgroups in all regions of the country.
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\1\ The terms ``Latino'' and ``Hispanic'' are used interchangeably
to refer collectively to Mexicans, Puerto Ricans, Cubans, Central and
South Americans, and others of Spanish and Latin American descent.
Hispanics can be of any race.
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I appreciate the opportunity to submit this statement for the
record in support of a thorough revision of the law regarding racial
profiling. First, this statement begins with a brief overview of
Hispanic demographics in order to provide the Subcommittee with an
accurate portrayal of the population about which we are speaking.
Second, this statement explains our concerns regarding racial profiling
as a law enforcement tactic and its effects on the Latino community.
Next, it describes particular concerns with respect to reliance on
racial profiling as a strategy to enforce immigration law, and emerging
collaborations among federal, state, and local law enforcement.
Finally, it concludes with recommendations on how we as a nation can
respond at all levels--federal, state, and local--to better serve and
protect all Americans from unnecessary and counter productive
harassment and intimidation by law enforcement.
II. HISPANICS AND RACIAL PROFILING: THE SCOPE OF THE PROBLEM
a. demographic status of the u.s. latino population
According to data from the 2000 Census, Hispanics constitute the
largest minority group in the U.S.; currently, more than one in eight
(12.5%) Americans is Hispanic. An increasingly large component of the
nation's population (35 million) is Hispanic. Latinos are composed of
several distinct subgroups: Mexican Americans, Puerto Ricans, Cubans,
and Central and South Americans. The latest data also show that the
majority of Hispanics are U.S.-born, or have U.S. citizenship.
According to the latest data, (39.1%) or 12.8 million Latinos were born
outside of the U.S. Among Hispanic children under 18, more than four-
fifths are native-born. Latinos tend to be young; for example, more
than one-third of the Latino population is under 18 years old; nearly
one in six (16.2%) of the K-12 student population is Hispanic.
More than three-fourths of the Hispanic American population is
concentrated in seven states: California, Florida, New York, Illinois,
Arizona, New Jersey, and Texas. As the Hispanic community grows,
Latinos are also living in some counties within ``nontraditional''
states. For example there were three states where the Hispanic
population more than doubled between 1-990 and 2000: Georgia (increased
by 299.6%), North Carolina (393.9% growth), and Tennessee (278.2%
increased). Latinos are also the most urbanized of the minority
populations: 91.5% of Hispanics live in major cities such as Los
Angeles, Houston, New York, Chicago, and Miami. Given their share of
the overall population, and the rapid growth and youthfulness of the
Hispanic population, the status of Latinos is increasingly important to
the future of all Americans.
This demographic snapshot provides an important context for the
discussion of racial profiling, which NCLR believes is becoming more
problematic in the Latino community. NCLR believes that stereotypes and
misinformation have played a role in the increase of inappropriate
police practices against minority groups, including Latinos, and that
accurate information about the Hispanic community is critically needed.
Latinos are moving into ``non-traditional'' cities, states, and regions
in which other minority groups and/or White Americans predominantly
reside. On its face, such a trend may not appear significant; however,
many of these areas lack the infrastructure, organizations, and other
civic participation mechanisms that allow Latinos to address increasing
inter-ethnic tensions and assist in promoting integration into the
American mainstream. The Latino community is struggling with these very
issues in the already-established communities of Los Angeles, Houston,
Chicago, and New York, and if it is difficult in those areas, one can
only imagine the devastating effect law enforcement abuse and
harassment has in these other areas where Hispanics are only now
emerging as a major presence.
b. the effects of racial profiling on the latino community
The use of racial profiling tactics not only violates civil rights,
but also undermines the ability of law enforcement to effectively
enforce the law. Specifically, when an individual's ethnicity is used
to establish a cause for suspicion of a crime, then that individual--
along with family members, friends, and neighbors--loses trust in the
integrity of law enforcement. As a result, public safety is placed in
jeopardy because members of these communities fear harassment and abuse
by the police and therefore are unlikely to seek police help when they
legitimately need it, i.e., to report a crime, serve as a witness or on
a jury, or otherwise cooperate with law enforcement.
The problem of racial profiling broadly manifests itself in the
Latino community and cannot be dismissed simply as a matter of a few
isolated incidents of poor judgment. For example, Latinos have been
systematically targeted for ``dragnet'' tactics by local and state law
enforcement officers, and those same tactics have been applied and
used, as a matter of formal policy, by some federal law enforcement
agents.
NCLR often receives reports from Latino individuals who have been
victimized by police and federal agents overstepping the bounds of the
Constitution in the name of drug and immigration enforcement. The vast
majority of cases, however, goes unreported. Even fewer actually result
in successful civil rights litigation or investigation by agencies
responsible for enforcing civil rights.
1. Local Law Enforcement
Local law enforcement relies on a widespread number of tactics
including traffic stops, ``stops and frisk'' approaches, and others to
enforce the law. Such tactics cross the line when they have a
disproportionate or disparate impact based on race or ethnicity. Below
we cite just a few of the cases we are aware of involving racial
profiling against Latinos by local law enforcement.
In 1999, the American Civil Liberties Union (ACLU) filed a federal
lawsuit on behalf of a San Jose lawyer who says the California Highway
Patrol (CHP) violated his civil rights when officers stopped him and
other Hispanics allegedly because of their ethnicity. According to the
lawsuit, the CHP pulled over the attorney and at least five other
Hispanic drivers on the Pacheco Pass portion of Highway 152 while
carrying out its federally-funded drug-interdiction program,
``Operation Pipeline.'' According to a CHP Sergeant, the CHP canine
units searched nearly 34,000 cars in 1997. Only 2% of them were
carrying drugs. In other states, up to 95% of all ``Operation
Pipeline'' searches have been found to be ``dry holes.''
Early this year, charges were brought before the U.S. Department of
Justice against New Jersey State Troopers for routinely stopping Black
and Hispanic drivers on state highways solely because of their skin
color. Several state troopers were also found guilty of falsifying in
their reports the race and ethnicity of drivers stopped. The troopers
admitted that they did this so as not to give the appearance that they
were only pulling over Black and Hispanic drivers.
In 1992, an Orlando Sentinel investigation into stops on an
interstate highway found that 5% of the drivers on that highway were
dark-skinned, yet nearly 70% of those stopped were Black or Hispanic.
The stops of Black and Hispanic drivers also lasted, on average, twice
as long as stops of White drivers. Only nine out of the 1,000 stops
resulted in a traffic ticket.
In the past, the Louisiana State Police Department used a training
film that explicitly exhorted officers to use traffic stops to conduct
narcotics searches of ``males of foreign nationalities, mainly Cubans,
Colombians, Puerto Ricans, or other swarthy outlanders.'' [United
States v. Thomas, 787 F. Supp. 663, 676 (E.D. Tex. 1992)]
In Colorado's Eagle County Sheriff's Department, race, ethnicity,
and out-of-state license plates were common drug-courier profile
factors in criminal investigations. After the use of such a profile was
determined to be unconstitutional, they have switched to using traffic
enforcement stops as a means of catching drug traffickers, but have not
stopped the use of racial profiles. [United States v. Laymon, 730 F.
Supp. 332, 337 (D. Colo. 1990)]
A December 1999 report by New York's Attorney General on the use of
``stop and frisk'' tactics by the New York City Police Department
revealed that between January 1998 through March 1999, 84% of the
almost 175,000 people stopped by NYPD were Black or Hispanic, despite
the fact that these two groups compose less than half of the city's
population.
The New York Attorney General's report on NYPD stop and frisk
tactics revealed that stops of minorities were less likely to lead to
arrests than stops of White New Yorkers--the NYPD arrested one white
New Yorker for every eight stops, one Hispanic New Yorker for every
nine stops, and one black New Yorker for every 9.5 stops.
2. Federal Law Enforcement
The use of racial profiling is not limited to local law enforcement
agencies. Federal agencies such as the Immigration and Naturalization
Service's (INS) Border Patrol, Inspections and Investigations
divisions, Drug Enforcement Administration (DEA), and the U.S. Customs
Service have been found to conduct community-wide ``sweeps,'' searches,
and seizures without proper reasonable suspicion, relying heavily on
ethnic background and race as an exclusive or primary factor. The use
of racial profiling has been justified by some due to the inaccurate
perception that Blacks, Latinos, and other minorities are more likely
to commit crimes--especially immigration and drug-related offences--
than Whites.
a. INS
According to a May 1, 2001 New York Times article, a review of 37
INS work site raids in the district of New York City showed that agents
frequently cited skin color, use of Spanish, foreign accents, and
clothing ``not typical of North America'' as primary evidence that
workers were likely to be undocumented. An example found in the review
disclosed that an INS agent conducting a surveillance of delicatessen,
between 34th and 35th Streets in New York City,
reported that some workers appeared to be of South or Central American
descent. Some spoke Spanish, the agent noted, and others spoke English
``with a foreign accent.'' The Times study confirmed that the INS
explicitly uses ethnicity to guide its enforcement efforts, a tactic
the agency has denied using.
On January 29, 1998 in Bethesda, Maryland, waitress Allegra Foley
was preparing tables for lunch at the Thymes Square Cafe when
plainclothes INS officers entered the restaurant. They headed directly
to the kitchen, where they questioned a number of Latino employees; six
were arrested. Foley was particularly upset that employees at the Cafe
were clearly targeted for questioning based on their perceived racial
appearance. In a notarized affidavit, Foley testified that ``at no time
did they ever question a white, black, or Asian employee on duty at the
restaurant. . .with sole exception of the manager. . .who. .
.voluntarily provided his green card.''
On July 9, 1997, in Portland Oregon, INS agents in unmarked
vehicles began arresting almost 50 Latino day laborers who were waiting
for work on street corners along East Burnside Street. The agents did
not identify themselves and arrested the majority of people without
asking questions. Most of the agents were dressed in plainclothes,
although some of them later donned Border Patrol jackets when their
colleagues arrived in bulletproof vests and uniforms. ``I only saw one
man questioned. It happened right in front of me. The INS agent came
right up close to his face, leaned over him, and asked him where he was
from and to show his papers. The worker didn't answer but started to
fumble in his wallet in an effort to extract a document and was
arrested before he could get it out. The entire interchange took less
than a minute. Only Latino men were arrested. Other people on the
scene, including a light-skinned Mexican, were not even questioned,''
recalled Lucy Bernard, a witness from the Workers' Organization
Committee in Portland.
INS agents conducted a raid in Jackson Hole, Wyoming in August
1996, in which 153 suspected illegal immigrants were rounded up and
detained. According to press reports, some of the suspects were picked
up off the street merely because their skin was brown. It was reported
that agents picked one man off his bicycle as he rode down the street;
``They failed to ask him to stop, they simply ran him down, took him
off his bike, put him in handcuffs, and stuffed him in the police
car,'' stated an eyewitness. Some of those picked up had large numbers
written on their arms with black felt pen, as though they were cattle.
Further press reports stated that 18 of those picked up were ``hauled
away in a dirty horse trailer lined with fresh manure.'' In the end, 40
of the ``suspects'' were released after proving they were citizens or
documented workers.
b. Border Patrol
The New York Times reported that many residents of South Texas
believe that the Border Patrol agents in airports and roving patrol
units systematically stop and detain too many blameless Hispanics. A
federal judge, Filemon B. Vela, was stopped by Border Patrol when
driving with three of his staff members (two of whom were also Latino)
because, he was told, there were too many people in his car. The
problem is pervasive enough to cause Cameron County Judge Gilberto
Hinojosa to state that his community feels like ``occupied territory''
by the Border Patrol, that it ``does not feel like we're in the United
States of-America.''
Border Patrol agents on roving patrols in Arizona have also been
stopping motorists without reasonable suspicion that violations of
immigration law have occurred. In fact, using information gathered
through the use of ``I-44'' forms that Border Patrol agents are advised
to fill out after traffic stops, a Federal Circuit Court of Appeals in
the class action Durgin v. De La Vina found that:
Plaintiffs produced evidence of a pattern and practice of
stopping persons without proper ``reasonable suspicion'' in the
numerous I-44s that they submitted. Many of these reports do
not describe facts that give rise to reasonable suspicion, and
many of the reports list similar and repetitive reasons for
stopping various persons. Plaintiffs also produced evidence of
other persons of Hispanic appearance whom the Border Patrol had
stopped, allegedly without reasonable suspicion. The Border
Patrol had stopped some of these persons on numerous occasions.
The Border Patrol's lack of clear record keeping indicates an
inclination to hide a pattern and practice of profiling. In the Durgin
case, Border Patrol agents did not fill I-44 forms after stopping the
plaintiffs. The Court quoted an internal training memorandum that shows
that Border Patrol agents are strongly advised to fill out I-44 forms
after every traffic stop they conduct because:
. . .written descriptions of ``reasonable suspicions'' are
important not only to win the case against the suspect, but also to
prove that agents acted properly in the event of civil lawsuits. .
.[I]f the Border Patrol and/or individual agents are sued in a civil
lawsuit alleging a pattern of discriminatory vehicle stops. .
.[agents'] written description of ``reasonable suspicion'' will be
critical to prove that the agents acted properly.
Agents are trained to use the forms to protect against potential
frivolous allegations of civil rights abuses. Thus, any instance where
an agent does not fill out an I-44 should raise a concern that ethnic
and racial profiling is being relied upon instead of the reasonable
suspicion standard required for a lawful stop.
c. Customs Service
A March 2000 GAO report on the U.S. Customs Service found that
Black, Asian, and Hispanic female U.S. citizens were four to nine times
more likely than white female U.S. citizens to be subjected to X-rays
after being frisked or patted down.
In reported cases regarding federal bus and train sweeps,
overwhelmingly the defendants are Black or Hispanic. From January 1,
1993 to August 22, 1995, of 55 cases in which the defendant's race
could be identified, Hispanics were 20% of those stopped and searched.
According to the courts, if no ``seizure'' takes place, law enforcement
agents do not need to explain how they select their targets. A federal
court upheld the case allowing the stop and search of a ``roughly
dressed black male.'' [United States v. Weaver, 966 F.2d 391, 396
(8th' Circuit 1992)]
c. collaboration between federal and local/state law enforcement
The INS and other federal law enforcement agencies have
significantly stepped up efforts in the last several years to enforce
immigration laws along the U.S./Mexico border, inland, and at the
workplace. Efforts such as increased workplace raids, an escalating
number of armed INS agents along the border and the interior, and more
joint operations between INS and other state/local law enforcement
agencies have served to undermine the physical safety and
constitutional and civil rights of Latino communities throughout the
United States. NCLR has noted that numerous civil rights violations and
abuses have been committed in the process of enforcing immigration law.
Incidents of illegal or inappropriate seizures, traffic stops based
solely on ethnic appearance, arrests without cause, deprivation of food
and water or medical attention, and actual physical abuse have been
recorded. Immigration enforcement by local police, even under the guise
of enforcement of separate criminal statutes, compromises and detracts
from the true mission of local police of ensuring public safety, and
worst of all, it undermines public trust and confidence. Many victims
of abuse and mistreatment by immigration authorities are U.S. citizens
or legal permanent residents. Examples of joint collaboration between
federal and local/state law enforcement agencies follow:
The Mexican American Legal Defense and Educational Fund, (MALDEF)
\2\ has filed litigation in connection with allegations of widespread
civil rights violations by local police involved in immigration
enforcement in northwest Arkansas. According to one of the plaintiffs,
the Rogers Police department has been turning over ``suspects'' to the
INS for immigration investigation. One of the claims is that of a woman
who, after calling the police for protection from her abusive husband,
was investigated as to her immigration status, arrested, and turned
over to the INS.
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\2\ NCLR is grateful for the assistance of the Mexican American
Legal Defense and Educational Fund (MALDEF) in providing the latest
information on the litigation.
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After a federal judge in Ohio ordered the INS' Border Patrol to
stop making discriminatory traffic stops (Ramirez v. Webb, later
affirmed by the 6th Circuit Court of Appeals), the INS
requested officials in the Ohio Highway Patrol to conduct the stops
instead. Consequently, a federal court ordered the Highway Patrol to
stop illegally confiscating green cards from legal migrant workers
during profile-based traffic stops [Farm Labor Organizing Committee vs.
Ohio State Highway Patrol].
In Chandler, Arizona in 1997, local police collaborated with Border
Patrol agents in illegal traffic stops to find undocumented immigrants.
What they found instead was a multimillion dollar lawsuit on behalf of
U.S. citizens and permanent residents who were repeatedly harassed and
detained by local police officers--without probable cause by their own
admission--because they ``looked Mexican.'' Arizona Attorney General
Grant Woods concluded ``without a doubt that residents of Chandler,
Arizona were stopped, detained, and interrogated by officers. . .purely
because of the color of their skin.'' Some of the plaintiffs have
settled the case while other claims are still pending.
On January 29, 1997, in Crescent City, Florida, INS agents, Putnam
County Sheriff's deputies, and Crescent City police officers conducted
a nighttime joint operation in search of undocumented immigrants. They
set up a highway checkpoint and conducted a sweep of a trailer park and
public housing facility largely inhabited by Hispanic residents.
Although the police explained to the press that they were searching for
drugs, there were no drug arrests made, nor were any drug searches
conducted. An eyewitness, a worker at the Farmworkers' Association of
Florida, lives in the neighborhood between two White families whose
homes were not raided.
His home was approached twice. His wife was home but did not
respond to the knock on the door. Approximately 50 other homes with
Hispanic residents were raided. The police and Border Patrol would
knock, announce ``Police!'' and barge in after the door was opened,
without consent and without cause. The officers also stopped Hispanics
in the street and requested immigration documents without cause. A 12-
year-old U.S. citizen was arrested in the street and taken miles from
home for not having ``papers.'' When police realized their ``mistake''
they let him go and told him where he could catch the bus home. Border
Patrol agents were involved, but one of them told local newspapers that
he would never again participate in such a horrible operation.
Currently, in the Chicago Metropolitan Area, suburban police
officers are increasingly detaining and questioning Hispanic Americans
for immigration purposes. The local police in Summit, a southwestern
Chicago suburb, detained a young U.S. citizen for several hours because
he had a thick Spanish accent and could not prove he was a U.S.
citizen. Another young Mexican American U.S. citizen was actually
turned over to the INS detention facility by a suburban police officer,
but was released by federal agents after a few questions. ``The arrest
followed a pattern of routine traffic stops, generally of Hispanic men
in their 20s, followed by questioning and detention because, as one
suburban police chief put it `they look illegal','' according to the
Chicago Tribune.
On May 27, 1998 in Minneapolis Minnesota, just after 7:00 p.m.,
five police cars arrived at southeast Minneapolis' Holmes Park--a
popular hangout for some of the city's Latino community--and drove over
street curbs and grass until they had surrounded the volleyball courts.
Dozens of Latinos in the park were subjected to more than an hour of
degrading interrogation; many were searched and frisked, with legs
spread and hands placed against squad cars. According to Curtis Aljets,
INS District Director for Minnesota and the Dakotas, the raid was a
joint operation between police and the INS to find the ``twenty most
egregious aggravated felons'' from a computer-generated list of
immigrants. Following the arrests, 14 people were deported; only one of
the detainees had a criminal record.
Courts have condemned INS and local police departments in several
other similar cases, including Velazque v. Ackerman (Director of INS,
San Jose, CA.); de Haro v. City of St. Helena; Mendoza v. U.S. City of
Farmersville; and Cedillo-Perez v. Adams (Chief of Police of Katy,
TX)).
In 1996 Congress established a formal Memorandum of Understanding
(MOU) process between the Department of Justice and state or local
government to guide such INS-state/local collaborations. However, none
of the programs cited above were conducted under the auspices of an
MOU, which would have assumed review by DOJ's Civil Rights Division and
training in immigration law for state/local offices.\3\ Thus, these
collaborations are taking place informally, without any formal review
or guidance from the Department of Justice.
---------------------------------------------------------------------------
\3\ One proposed MOU between DOJ and Salt Lake City was rejected by
the City Council after extensive protest from Latino community leaders
and other civil rights organizations.
---------------------------------------------------------------------------
III. OVERVIEW AND RECOMMENDATIONS
a. overview
As this brief review shows, the Latino community is
disproportionately targeted by law enforcement. The use of racial
profiling tactics not only violates civil rights, but undermines trust
between the Latino community and the police. Racial profiling
disparately impacts the Latino community significantly because it is
not only targeted by local and state law enforcement agencies, but also
by federal agencies including the INS and Customs Service. Joint
operations between local/state and federal law enforcement agencies are
becoming a routine method of law enforcement resulting in wholesale
civil rights violations.
Racial profiling unfortunately is not a new problem. The Latino
community has been struggling with racial profiling and law enforcement
abuse for too long. Legislation was introduced without avail in the
past two Congresses to study, address, and put an end to racial
profiling. However, never before has the political climate been more
favorable for enacting racial profiling legislation. President Bush
acknowledged during his inaugural address that racial profiling was a
national problem, and he indicated his firm commitment to the
elimination of this discriminatory practice. Later, Attorney General
Ashcroft pledged to work with Congress to take the necessary measures
to address racial profiling.
In that spirit, the National Council of La Raza strongly supports
the End Racial Profiling Act of 2001 because it strives to eliminate
racial profiling comprehensively, including racial profiling by federal
agencies, such as the Immigration and Naturalization Service (INS),
Drug Enforcement Administration (DEA), and Customs Service, and joint
federal-state/local operations. It is crucial that federal law
enforcement be held to the same high standards as state and local law
enforcement, so that all communities, including the Latino community,
can rely on law enforcement to provide protection and safety for
everyone.
b. recommendations
To address the growing problem of racial profiling, NCLR:
Urges Congress to pass and the Administration to sign the End
Racial Profiling Act of 2001. The Act, introduced by Senators
Feingold (D-WI), Clinton (D-NY), Corzine (D-NJ), and
Representatives Conyers (D-MI), Morella (R-MD), Ferguson (R-
NJ), Greenwood (R-PA), and Johnson (R-IL) would ban the
practice of racial profiling by federal law enforcement
agencies, and provide incentives to state and local law
enforcement agencies to eliminate this practice. Additionally,
it requires the collection of data on routine investigatory
activities; establishes procedures for receiving,
investigating, and responding to claims of racial profiling;
and requires training of law enforcement agents and holding
them accountable for engaging in racial profiling. In addition,
the Act offers incentive grants that encourage compliance,
development, and implementation of practices such as the
acquisition of technology to facilitate data collection,
training to prevent racial profiling, and a fostering mechanism
that would make the interaction between law enforcement and the
community more respectful.
Urges President Bush and Attorney General Ashcroft to take
proactive, interim steps to address racial profiling. We urge
them to reaffirm their commitment to the eradication of this
social problem by declaring and enforcing a ban on racial
profiling by all federal agencies. Further, we recommend the
Administration to require collection of data relevant by all
federal law enforcement agencies.
Encourages Congress and the Administration to provide adequate
resources to the Department of Justice's Special Litigation
Section to enable it to fulfill its task of pursuing ``pattern
and practice'' lawsuits against police agencies nationwide
which commit widespread abuse. While many in Congress and the
White House have said that they want to ensure the prosecutors
have all the resources they need to enforce U.S. laws in these
cases, funding of the Civil Rights Division's work in this
areas remains inadequate.
Calls on the Department of Justice to end collaboration between
INS and other law enforcement agencies in conducting
enforcement operations. Any existing cooperation agreement
between the INS and local/state law enforcement should be
terminated, and the Attorney General should decline to pursue
additional agreements.
Urges the INS to establish an improved mechanism to address
complaints about abuse of authority in the enforcement of
federal immigration laws. The federal government has the
authority and obligations to ensure that enforcing the nation's
immigration laws do not result in abuse. A body, such as a
``civilian review panel'' with the ability and resources to
accept and investigate complaints of federal law enforcement
abuse and to make recommendations for remedial action, should
be established to help ensure government accountability and
deter further civil rights violations. Such a panel could be a
step forward in addressing the ever-increasing number of
complaints filed against immigration enforcement agents.
I thank Chairman Feingold for his leadership and vision on this
issue that deeply affects the Latino community.
National Troopers Coalition
Albany, New York 12207
August 1, 2001
The Hon. Patrick J. Leahy
Chairman, Senate Committee on the Judiciary
224 Senate Dirksen Office Building
Washington, DC 20510
Dear Chairman Leahy:
I write to express the opposition of the National Troopers
Coalition (NTC) to S. 989, End Racial Profiling Act of 2001, to be
heard this morning by the Subcommittee on Constitution, Federalism, and
Property Rights. As you know, the NTC is composed of state police and
highway patrols from throughout the United States and has a membership
of approximately 45,000 of all ranks, trooper through colonel.
As background, criminal profiling is an effective tool for law
enforcement. Local, state, and federal law enforcement agencies have
been utilizing criminal profiling as a proven and valuable technique to
identify criminals for decades. As an example, ``Criminal Drug
Interdiction Profiling'' is a law enforcement practice whereby
identifying drug traffickers is an essential component of an officer's
training. Police officers are, in fact, taught to observe the
individual for characteristics or indicators of drug courier activity.
It is ``Reason not Race'' that directs the attention of police officers
to drug smugglers, ``Criminal Drug Interdiction Profiling'' is rooted
in statistical reality, not based on race or other such factors.
At the same time, I am not aware of any law enforcement agency that
teaches or condones racial profiling as an institutional endeavor, nor
does the NTC condone the use of race alone as the rationale for police
action.
The NTC is on record opposing data collection to address this
issue. We believe it is a misuse of valuable resources at every level
of government. Rather, we support the use of resources to increase
awareness of existing policies, both internally and externally,
increased training and education for law enforcement, and financial
support for greater use of video and audio recording devices in police
vehicles.
For these and other reasons, we again stress our opposition to the
approach contained in this legislation.
Sincerely,
Scott Reinacher
President
Article by Susan Sachs, New York Times, May 1, 2001
Files Suggest Profiling of Latinos Led to Immigration Raids
Before immigration agents raided Al's Deli on Seventh Avenue in
Midtown Manhattan four years ago, they considered several factors. One
was an anonymous tip alleging simply that 10 of the 20 or so workers
were illegal Mexican immigrants. Another was their own surreptitious
observations about the employees.
An agent who conducted a surveillance of the delicatessen, between
34th and 35th Streets, reported that some workers
appeared to be of South or Central American descent. Some spoke
Spanish, the agent noted, and others spoke English ``with a foreign
accent.''
That was enough to prompt a raid of the deli in search of illegal
immigrants.
The raid was a modest law enforcement success for the Immigration
and Naturalization Service's New York district, which covers New York
City and Long Island. It netted three illegal immigrants from Mexico
and one from India from among the dozen workers present.
But the operation also followed a familiar pattern in the New York
district, one that senior immigration officials say may have violated
the federal agency's guidelines for avoiding ethnic or racial
profiling. In this and other cases, agents appeared to rely almost
exclusively on Latino appearance or foreign accents--common attributes
in New York and other American cities--to reach a conclusion that
workers could be illegal immigrants.
A review by The New York Times of 37 I.N.S. work site raids in the
district showed that agents frequently cited skin color, use of
Spanish, foreign accents and clothing ``not typical of North America''
as primary evidence that workers were likely to be undocumented.
Agents are required to have specific facts in hand or a reasonable
suspicion to question someone's legal status, like nervousness when
confronted with the immigration agency or unfamiliarity with the
surroundings. Appearance may be one factor, but courts and the agency
itself have said it is discriminatory to stop and search a person based
on foreign appearance alone.
The files reviewed represent 20 percent of the district's 187 work
site cases during a 30-month period from January 1997 through June
1999. The Immigration and Naturalization Service itself selected the
cases as a random sample and provided them to Unite, the garment
Workers' union, as part of a settlement of a lawsuit alleging selective
enforcement. The union provided them to The Times.
All but a handful of the 37 raids did result in the arrests of
illegal workers and, unsurprisingly considering the criteria used,
nearly everyone arrested during that period was Latino. And while some
investigations grew out of detailed accusations by an informed tipster,
in 30 of 37 cases a raid was carried out after agents made observations
as simplistic as those at Al's Deli.
``Obviously, mere nationality and mere ethnicity by themselves,
unsupported by other facts, are absolutely no basis for us to determine
a person is illegally in the United States,'' said Joseph Greene, the
assistant I.N.S. commissioner for investigations in Washington.
``There's a whole body of jurisprudence that has heightened everybody's
sensitivity to that,'' he added.
As the nation has become more diverse, largely because of an influx
of legal immigrants from Latin America and Asia, the role that ethnic
profiling may play in the enforcement of immigration laws has become an
issue of mounting concern for advocates and the agency itself.
Nationality is clearly an element to be considered when looking for
illegal immigrants: all illegal immigrants, by definition, are
foreigners. But simply looking or sounding foreign, civil rights groups
have argued, is not a sufficient basis for suspicion in a country where
illegal immigrants may not differ in race, ethnicity or national origin
from everyone else around them.
And as in other instances of profiling--whether on the New Jersey
Turnpike or the streets of Harlem--there are costs to the innocent
people swept up. In the New York raids and others like them, fully
legal people are subjected to the humiliation of proving their status,
sometimes after being jailed.
That happened to Maria Espinoza, a worker from Ecuador who was
arrested during an immigration agency raid on the SPD Molding factory
in Long Island City, Queens, in September 1999. She told agents she was
a legal permanent resident, but was detained with other Latino workers
and told she would be deported.
``At that moment, I did not carry my green card, butt the people
did not believe me,'' Mrs. Espinoza recalled this week. ``They
handcuffed me and arrested me.'' A computer check eventually confirmed
her innocence, and she was released after spending three hours in
detention.
A number of legal challenges have been brought recently in several
states, including Arkansas and California, accusing the authorities of
singling out Latinos for questioning about their immigration status.
A federal judge in Ohio recently ruled that state highway patrol
officers, acting as de facto immigration agents, violated people's
rights by routinely pulling over Latino drivers to question their
immigration status. In one instance, legal migrant workers were stopped
and had their green cards taken by officers who said they were
fraudulent.
Courts have generally given I.N.S. officers themselves greater
latitude to stop people for immigration checks, particularly near the
border, but still set constitutional limits. The Supreme Court has
ruled, for example, that I.N.S. agents working near the Mexican border
may use their suspicion of someone's Mexican ancestry as one of the
grounds for stopping that person, although it legally cannot be the
only grounds.
In three more recent cases in California, federal judges said
immigration agents committed ``egregious'' violations of the Fourth
Amendment when they stopped individuals. solely on the basis of their
Latino appearance or foreign-sounding name.
``There may or may not be an argument for using ethnicity or
national origin as one of the predicates for enforcement actions along
the border,'' said Charles Kawasaki, vice president of the National
Council of La Raza, a Latino group in Washington. ``But you just can't
make that case in the interior of the country,'' he added.
In its own rules, the immigration service specifically warns its
agents not to assume that illegal immigrants can be identified by
foreign appearance, language or ethnic characteristics.``This is not
science,'' said Mr. Greene, the agency enforcement chief. ``It is
art.''
Edward J. McElroy, the New York district director, would not talk
about the enforcement program. The district issued a statement saying
that all of its work site raids are based on a ``reasonable suspicion''
that an employer is violating immigration laws.
Reasonable suspicion, the statement said, ``can include the
officer's training and experience, information from reliable informants
and other communications, and or any other factors that in their
totality would validate the investigation.''
The immigration service, however, arrested almost no one but
Latinos during the 30-month period covered by the random sample.
According to a summary released as part of the settlement, Mexicans,
Ecuadoreans and others from Central and South America accounted for 96
percent of the 2,907 people arrested in the district's 187 work site
raids. That is a far bigger proportion than Latinos represent in either
the city's illegal or legal population.
The preponderance of Latinos stands out even more sharply when the
type of company that was raided is taken into consideration. Most of
the businesses were garment factories, where employers' groups, unions
and the immigration service all say that about half the employees are
Asian, some of them illegal.
Yet in two and a half years of enforcement actions, the New York
district arrested only two Chinese people during any of its work site
raids.
While it is not surprising that immigration officers found illegal
immigrants from Latin America working in the kinds of low-wage
businesses they raided, it is not clear why they found Latinos almost
exclusively.
``They are playing a numbers game,'' speculated Wing Lam, director
of the Chinese Staff and Workers Association, which represents many
undocumented Chinese workers. ``It's easier to arrest a Latino and send
him back than it is to send someone all the way back to China.''
The New York files provided by Unite afforded a highly unusual
opportunity to analyze the conduct of the local Immigration and
Naturalization Service district, which fights to keep its operations
secret. The tip sheets, investigative memos and other documents--with
the names of agents and immigrants blacked out for privacy--provide at
least a written record of how agents built their cases.
In many files there is no evidence that agents based their decision
to raid a particular business on anything other than nonspecific tips
and their own deductions drawn from the workers' ethnicity.
Liverpool Industries in Brooklyn, for instance, was raided in
August 1997. Documents in the file showed that the company caught the
attention of the immigration agency when it applied for permission to
hire foreign workers to take jobs as brake operators. During a
surveillance, an agent noted seeing several ``Latin individuals''
speaking Spanish and wrote in a report that ``it was determined that
some of these individuals were most likely undocumented aliens.''
Two of the 70 employees were arrested in a raid.
In another case, the district received an anonymous tip that 15
workers at a Midtown garment factory called BNA Fashion were illegal
immigrants from Mexico and Korea. The agent who conducted a
surveillance at the factory reported that some employees were heard
speaking Spanish.
``Many individuals,'' the agent also wrote, ``had dark black hair,
medium skin color and wore clothing typical of Mexican and Ecuadorean
descent.''
The factory was raided. Seven of the 35 workers were arrested, 3
from Ecuador and 4 from Mexico.
An agent checking a tip about undocumented workers at H.C.
Contracting, a Midtown garment factory, noted that Spanish music was
playing on a radio and 40 to 50 of the 70 employees ``appeared to be of
Central or South American descent.'' Those workers, the agent added,
may support the allegation of illegal immigrants.
``The I.N.S. seems to equate Latino physical and cultural
characteristics with illegality--that is, with being an undocumented
immigrant,'' said Michael J. Wishnie, a director of the Immigration Law
Clinic at the New York University Law School.
The clinic represents two union members who are fighting
deportation on the grounds that they and other Latinos were improperly
singled out for arrest during the H.C. Contracting raid in 1998.
In a few instances, agents made similar observations but hesitated
to draw the same conclusions. Observing a Manhattan garment factory in
1997, an agent said that about 35 workers appeared to be of Mexican or
Central or South American descent. ``here was no way of determining,''
the agent wrote, ``the legal status of any individual at this time.''
Over the past two years, with labor shortages affecting many
industries, the immigration service has largely abandoned workplace
raids as a means of finding illegal immigrants.
Nationally, the number of raids dropped by half last year. In New
York, only 125 work site cases were completed last year compared with
263 the year before. Arrests by the New York immigration district from
raids also declined sharply, from 1,400 in 1997 to 166 in 2000.
Enforcement efforts, immigration officials said, are now focused on
better sealing the border with Mexico, snaring immigrant smugglers and
catching illegal immigrants involved in organized crime.
http://www.nytimes.com
GRAPHIC: Photos: Case files and memos of immigration and
Naturalization Service agents in the New York district suggest that
work site raids are often based on language or appearance. (pg. B1); A
file from a workplace surveillance by the immigration agency's New York
office. Over 30 months, Central and South Americans accounted for 96
percent of the 2,907 people arrested in the district's 187 work site
raids. (pg. B6)
Daleville Department of Public Safety,
Daleville, Alabama,
July 31, 2001
Chairman Russell D. Feingold
Subcommittee on Constitution, Federalism,
and Property Rights
U.S. Senate
Washington, D.C. 20510
Ranking Member Strom Thurmond
Subcommittee on Constitution, Federalism,
and Property Rights
U.S. Senate
Washington, D.C. 20510
Dear Chairman heingold and Ranking Member Thurmond:
I am the director of Public Safety for Daleville, Alabama, a town
of approximately 4,653 residents. Accordingly, 1 dm responsible for law
enforcement activities within my community. Approximately 25.4% of our
population is African American, I am very concerned that S. 989, the
.End Racial Profiling Act of 2001, will deter police officers in my
community and others from effectively policing African American
neighborhoods.
While no police officer should stop, arrest, or treat any person
differently just because of the color of his of her skin, There is not
a single officer around who can fully and capably perform his or her
job based on statutory formulas prescribed by Congress. The threat of
being sued because proportions of people being stopped or arrested do
not comply with lcderally-prescribed formulas is, again, dangerous.
1 fear that lower income African American citizens, many of whom
are elderly or are single parent families, art: most vulnerable to the
dangers brought about by a retreat from their neighborhood. They need
our protection most. We cannot give it to them if we are under the
threat of being sued.
I certainly urge you to address the evils associated with racial
profiling, but nut in the harsh and constricting ways that this
legislation prescribes. Please reject the mechanical, unwavering
standard of this legislation. While we do rived to end racial
profiling, I respectfully submit that this legislation is not the
appropriate way in which to do it. Frankly, I feel that it may only
serve to exacerbate, rather than ameliorate, the problem.
Thank you for holding this hearing and for taking the time to
consider my concerns over this well-intentioned, but practically
misguided legislation.
Sincerely,
Jimmy L. Seaton
Director, Daleville D.P.S.
Article by Jonathan Serrie, Fox News, July 27, 2001
Seattle Cops, Wary of Race-Profiling Accusations, Cutting Back on
Minority Arrests
SEATTLE--Amid charges of racism, many Seattle police officers say
they are cutting back on the number of arrests they make in minority
communities.
Officers still respond to 911 emergency calls. But cops on the beat
are ignoring many traffic violations and other minor offenses.
This form of passive law enforcement--some are calling the cops
``tourists in blue,''--is not official policy, but the practice is
growing among individual officers who fear more aggressive police work
will be labeled as ``racial profiling.''
Sgt. Mike Edwards, president o1 the Seattle Police Officers Guild,
describes the practice as NCNC--``No contact. No complaint.''
Seattle police have been inundated with complaints of ``racial
profiling'' following the recent fatal shootings of two black suspects.
On May 31, a white policeman shot work-release escapee Aaron
Roberts while the suspect was dragging the officer's partner from the
side of his car.
In April 2000, David John Walker was shot while walking down a
sidewalk brandishing a knife. Walker was also carrying a gun and had
fired shots outside a nearby grocery store.
In both cases, police say the suspects ignored repeated warnings to
surrender. In the Walker case, there was even local 1V news footage
confirming the officer's story. Yet both shootings prompted hundreds of
protesters, black and white, to take to the streets accusing Seattle
police of murder and genocide.
Such accusations carry a lot of weight with leaders of this city,
which prides itself on civility. But many rank-and-file cops say weak-
kneed politicians are affecting their ability to serve and protect.
Seattle police were ordered to hold back during this year's Mardi
Gras protests, when a white man was beaten to death by an angry mob
while trying to rescue a woman under attack.
Most of the suspects arrested in the disturbances were black, and
the cops were subsequently accused of targeting minorities.
Racial profiling has become a popular charge among critics of
police, who say officers place a disproportionate emphasis on
patrolling minority neighborhoods and are more likely to be suspicious
of minorities.
``There's a bad element everywhere,'' said Seattle resident Richard
Mitchell. ``The patrols should be just as balanced in the predominantly
white neighborhoods as they are in the black neighborhoods.''
Sgt. Edwards disagrees.
``The officers are there because they're being called there. The
minority communities, the poor communities, the areas that have the
highest incidence of crime have the greatest need for police,'' Edwards
said.
But some officers are starting to wonder whether aggressive police
work is worth the risk of being accused of racism and being
investigated by city officials.
The problem is not unique to Seattle Police around the country say
the reputations, and even careers, of men and women in blue are often
jeopardized by the racial politics of those who see law enforcement in
black and white.
Article by Stuart Taylor Jr., National Journal, April 24, 1999
Racial Profiling--The Liberals are Right
While fueled by demagogic rhetoric and political opportunism, the.
current uproar over allegedly racist police practice in New York City
and elsewhere has spotlighted one dearly abusive practice that
moderates, conservatives, and, indeed, police chiefs should join
liberals in assailing: racial profiling. That is the apparently
widespread police habit of using skin color or ethnicity as a factor in
deciding whom to stop and search for residence of crime.
Just this week, New Jersey Gov. Christine Todd Whitman admitted
that a 111page internal review had confirmed a 1996 judicial ruling
that some state police officers had engaged in racial profiling in
deciding which cars to search during traffic stops on the turnpike.
Around the country, thousands of minority-group members have been
humiliated by police stops and searches, often for conduct no more
suspicious than ``driving while black'' or walking the streets of their
communities. This, in turn, has helped to breed a deeply corrosive
mistrust of law enforcement.
The full extent and the perniciousness of racial profiling are
difficult to grasp for those of us who have not been targeted. The
practice is virtually invisible to whites, except in the minority of
cases in which police find illegal drugs or guns and make arrests.
Almost all police organizations deny that they condone racial
profiling. It is easily camouflaged by nonracial pretexts for searching
cars and pedestrians; and it is sometimes confined with proper police
work.
All this, plus the assumption that falling crime races mean that
the police must be doing something right, helps explain why moderate
and conservative leaders have so far expressed relatively little
concern about racial profiling. But the result has been to leave a void
to be filled by race-card-carrying police-bashers such as Al Sharpton
(sponsor of the Tawana Brawley hoax) and Jesse Jackson (who recently
accused police in Mew York City of declaring ``open season on
blacks'').
This issue is too important to be left to opportunists such as
these. More law enforcement officials and politicians alike should
recognize that whatever short-term benefits racial profiling may
produce in catching a few criminals are far outweighed by the long-term
costs. The biggest cost is the poisoning of police relations with
.minority-group communities, and thus with potential witnesses and
juror in the communities most in need of effective law enforcement.
While there have been few systematic studies of racial profiling,
the scattered data collected so far are striking.
In New Jersey, the report released on April 20 showed that 77
percent of motorists searched on the turnpike were black or Hispanic,
even though 60 percent of those stopped were white.
In Maryland, according to statistics compiled by state police as
part of a 1995 court settlement, 70 percent of the drivers searched on
a stretch of Interstate 95 from January 1995 through September 1996
were black--even though blacks made up only 17 percent of all drivers
(and of all speeders) on that road, according to a related study by the
American Civil Liberties Union.
Thus, an innocent black driver was four times as likely to be
searched as an innocent white driver. And this was after the state
police had (in the court settlement) issued a written policy barring
race-based stops.
Studies of car stops in places ranging from Volusia County, Fla.,
to Eagle County, Colo., also reflect dramatic racial disparities. And
in Louisiana, a state police training film a few years ago told
officers to use traffic stops to do drug searches of ``males of foreign
nationalities, mainly Cubans, Colombians, Puerto Ricans, or other
swarthy outlanders.''
The most telling evidence of the extent and offensiveness of race-
baled stops and searches may be the personal accounts of the many black
and Hispanic people who see such stops as emblematic of a
discriminatory criminal justice system.
``You cannot talk to an African-American who has not either had
this experience or had a relative go through it,'' sacs David A.
Harris, a law professor at the University of Toledo, whose research on
car stops and searches has included interviews with large numbers of
middle-class blacks. ``It's a humiliating and angering experience,''
Harris reports. ``One man said it's like someone pulling your pants
down around your ankles. . .And any African-American who has teenage
kids, especially male kids. . .they've had `the talk' with them, about
what to do when not if, when-they are stopped. This is in the nature of
instructions for survival.''
Is there any justification for racial profiling? Defenders of the
practice point out that certain crimes are disproportionately committed
by young black and Hispanic men-or by members of particular ethnic
groups, such as Jamaicans or Colombians-and that police logically look
for evidence where the criminals live, in the inner cities.
Such rationales reflect the tendency of practitioners and critics
alike to confuse racial profiling with a different phenomenon: the
policies of police in places like New York City to patrol (and stop,
and search) most aggressively in high-crime neighborhoods. When done
with respect and sensitivity, this can produce safer communities and
better community relations. When it veers into wholesale intimidation,
and indiscriminate frisking of young men on the street, it can become
indistinguishable from racial profiling.
Even critics acknowledge that racial profiling is not entirely
irrational in treating young black inner-city men as presumptively more
worthy of attention than, say, grandmothers. Jesse Jackson himself
implied this when lie said in 1993: ``here is nothing more painful to
me at this stage in me life than to walk down the street and hear
footsteps and start thinking about robbery-then look around and see
somebody white and feel relieved.''
A citizen such as Jackson might be justified in keeping a prudent
distance from a group of black youths in certain settings. But a police
officer would not be justified (absent some particularized basis for
suspicion) in picking up a black youth, standing him against a call.
and frisking him.
While ``it is rational to be more suspicious of a young black man
than an elderly white woman.'' in the words of a trenchant new book be
David Cole, No Equal Justice: Rare and Class in the American Criminal
Justice System, that ``does not make it right. First, the correlation
of race and crime remains a stereotype, and most blacks will not
conform to the stereotype. . .A police officer who relies on race in
stopping and questioning individuals is therefore likely to stop many
more innocent than guilty individuals. Second, our nation's historical
reliance on race for invidious discrimination renders suspect such
consideration of race today, even if it might be `rational' in some
sense.''
And outside of the inner cities, it's unclear that such practices
as race-based traffic stops on major highways-in which police are
usually looking not for murderers, rapists, or robbers but for drugs-
produce airy significant law enforcement benefit at all.
Meanwhile, the costs mount; as innocent people who are searched
come away feeling mistreated. This takes an incalculable toll on the
willingness of many black and Hispanic citizens to cooperate with
police, to provide leads, to testify as witnesses, and, when they serve
as jurors, to convict guilty people.
What can be done about racial profiling? The practice is too deeply
ingrained in police culture, and too easily camouflaged, to be
eradicated by legislation or lawsuits. The best remedy may be for
police chiefs to train their officers to shun such profiling, and to
recruit more black and Hispanic officers.
In the short run, we need more studies to expose the extent of
racial profiling: San Diego and San Jose, Calif., are both doing
studies of their own police forces. Political pressure, lawsuits, and
enlightened self-interest should spur other cities and states to do the
same.
Meanwhile, Congress should give careful consideration to a proposal
by Rep. John Conyers Jr., D-Mich., to require the justice Department to
collect and study racial and ethnic data about the drivers stopped and
searched by state and local police.
Racial statistics can, of course, be manipulated to draw misleading
inferences of discrimination, such as the wrong--headed notion that
elite colleges discriminate against minorities by giving weight to
Scholastic Aptitude Test scores in admissions. But unlike the case of
SAT scores, racial profiling involves real discrimination. And on this
issue, sunlight may be the best disinfectant.
Article by William Tucker, Weekly Standard, June 18, 2001
The Tragedy of Racial Profiling
it's unjust-and it works.
Last week, Hillary Rodham Clinton joined a growing chorus of
lawmakers in calling for a federal ban on racial profiling. ``Profiling
is not an effective law enforcement tool,'' said New York's junior
senator. ``The vast majority of African Americans and Hispanics who are
stopped or searched have committed no crime.'' As this movement gathers
steam, it's worth recalling one of the incidents that fueled the
debate.
In November 1999, Academy Award-winning actor Danny Glover came to
New York and found he couldn't get a taxicab. Angry, he called a press
conference the next day to denounce ``racial profiling.'' Within hours
the New York Daily News was inundated with faxes and letters from
middle-class blacks complaining of similar problems. Makeup artist
Donyale McRae, cousin of the late jazz singer Carmen McRae, said he
could not get a taxi while dressed in a tuxedo after attending the
Grammy Awards at Radio City Music Hall. ``I can hail a cab until I'm
blue in the face,'' complained a 62-year-old publishing executive.
``They will not stop.''
Al Sharpton promptly filed a class action against the Taxi and
Limousine Commission. Former mayor David Dinkins chided mayor Rudolph
Giuliani for not doing his job. The New York Times-acknowledging that
most of the drivers are immigrants-concluded: ``Racism is perpetuated
by cabbies whose attitudes have roots. . .in colonial rule.'' The
drivers themselves claimed not to be bigots but admitted to racial
profiling. Their defense was that they were justified in making race-
based assumptions, because African Americans were more likely to take
them into bad neighborhoods, rob them, or beat them for the fare.
Giuliani sent undercover officers into the neighborhoods to catch the
cabbies in the act, and several drivers-all from the Middle East or
East Asia-were arrested.
---------------------------------------------------------------------------
William Tucker is a writer living in Brooklyn. His most recent
article for The WEEKLY STANDARD was ``The Myth of Alternative Enemy''
(May, 21, 2001).
---------------------------------------------------------------------------
Then another trend began. Within weeks of Glover's press
conference, a string of cab drivers were killed by passengers. Two were
murdered in November and December and two more in early 2000. When a
48-year-old Venezuelan immigrant, the father of five, was shot in his
cab on February 24, police commissioner Howard Safir announced the
formation of a special task force to investigate what the Daily News
called the ``wave of killings.''
Meeting with police in Manhattan, 400 drivers agreed to allow
police to stop cabs in traffic at any time to make sure they were not
in trouble. Research showed that while only 22 licensed cab drivers,
who operate mainly in midtown Manhattan, had been killed over the last
decade, 230 livery drivers-who operate in poorer neighborhoods had been
victimized. By March the ``profiling police'' were forgotten. Instead
undercover officers were posing as livery drivers in East New York and
the South Bronx. Even so, during two particularly grim weeks in April,
four more drivers were murdered. During the first five months of 2000
ten drivers were killed one more than in all of 1999. Not until the
city government spent $7 million helping livery services install
bulletproof partitions or security cameras in their cars did the
attacks subside.
Now, it's impossible to prove that the crackdown on ``racial
profiling'' by cabbies led to the subsequent crime wave, but the
sequence is suggestive. Though infuriating to honest customers, the
cabbies' discrimination is not irrational. And the effort to stamp it
out adds to the danger of driving a cab. This is a cautionary tale for
those who would outlaw racial profiling by police. Because the evidence
suggests, for all that good liberals like Hillary Clinton want to
believe otherwise, that racial profiling is an effective law
enforcement tool, though it undeniably visits indignity on the
innocent.
Indeed, racial profiling is a predictable outcome of the stepped-up
law enforcement of the 1990s. Violent crime rates have fallen in the
last decade as in no other period in American history. In 1991 there
were 24,700 murders in America. In 1999 there were 15,530 with a larger
population. There are no doubt a number of factors at work, but one
obvious one is the new style of law enforcement, pioneered in New York,
where police seek to control ``disorder'' as well as crime. An
outgrowth of George Kelling and James Q. Wilson's ``broken windows''
theory of the importance of public order, this labor intensive policing
of the streets is effective, but intrusive. And it is unfortunately
law-abiding blacks who often get caught in the crossfire. Those stories
about well-dressed corporate lawyers being stopped for walking through
their own suburban neighborhoods or ``driving while black'' are true. A
few months ago I discovered a burglar in the living room of our
Brooklyn home. After I ushered him out the door, the police arrived and
began driving me around the neighborhood looking for the suspect.
Halfway down the block, the detective started shouting, ``Is that him?
Is that him?'' He was pointing to my friend and neighbor, a gray haired
55-year-old black man who is president of our block association.
Police officers usually come from working class backgrounds and
seem unable to make distinctions between street criminals and middle-
class blacks. Instead of using race as one of a number of cues, they
over-generalize. Obviously, there is room for improvement. Yet the key
questions remain: Are the police justified in paying more attention to
blacks as potential criminal suspects? And will a broad-brush campaign
against racial profiling undo the progress made against crime over the
last ten years?
Downplaying this dilemma, liberals simply assert that the
perception of black over representation in crime is a result of
``racial profiling.'' New York State attorney general Eliot Spitzer
issued a 1999 report concluding that blacks and Hispanics were
``disproportionately represented'' in 10,000 stop-and-frisks by New
York City police. Disproportionate to what he didn't specify. Blacks
constitute 44 percent of the population and were 49 percent of those
stopped and frisked. They were also identified by the victims as
perpetrators in 60 percent of all street crimes and constituted 55
percent of those arrested. From these numbers, you can more accurately
argue that blacks were under represented in stop-and-frisks.
Writing for the New York Times, David Cole and John Lamberth, two
of the leading spokesmen on ``racial profiling,'' argue that, ``even on
its own terms, racial profiling doesn't work.'' As proof they note that
``73 percent of those stopped and searched on a [Maryland] section of
Interstate 95 were black, yet state police reported that equal
percentages of the whites and blacks who were searched, statewide, had
drugs or other contraband.'' Yet these equal arrest percentages are
prima facie evidence that the police were doing their jobs fairly. If
they were mistaken in their assumptions about black drivers, there
should have been a lower percentage of arrests among the blacks
searched.
In December, former attorney general Janet Reno stopped the first
federal execution in almost 30 years,when she and former president Bill
Clinton became concerned that the killer, drug kingpin Juan Raul Garza,
was subject to discrimination because of anti-Hispanic racial
profiling. Yet the federal statute under which Garza was tried applies
to murders committed by drug dealers, and law enforcement officers up
and down the line agree that the drug trade is now controlled by
African-American, Caribbean, and Latin American groups. As Heather Mac
Donald noted in her seminal work on racial profiling in the Manhattan
Institute's City Journal: ``The notion that there are lots of heavy-
duty white dealers sneaking by undetected contradicts the street
experience of just about every narcotics cop you will ever to talk
to.'' (Garza is scheduled to be executed June 19, but there will
probably be another stay as the justice Department continues its
investigation.) Meanwhile the American Civil Liberties Union and the
NAACP want to abolish capital punishment altogether because 43 percent
of the people on death row are black. Yet blacks committed 52 percent
of the murders in America over the past quarter century and are
arguably under represented on death row-for reasons we'll see in a
minute.
Discussions of racial profiling almost inevitably are based on an
assertion that racial and ethnic groups should be subject to procedures
in the criminal justice system based on their representation in the
population rather than by the number of crimes they commit. But the
justice system is not the House of Representatives. There is no
constitutional guarantee of equal representation in the criminal
dockets. Blacks are over represented for one simple reason-they commit
many crimes at multiples above other racial groups. This propensity
toward violent crime is probably the nation's number one social
problem. Yet liberals, out of either willful naivete or chutzpah,
choose to pretend it doesn't exist. Senator Robert Torricelli, for
instance, made this claim at the confirmation hearings of attorney
general John Ashcroft: ``Statistically, it cannot be borne out that
certain ethnic or racial groups disproportionately commit crimes. They
do not.'' It would be interesting to know where he is getting his
statistics.
Here are some of the ones he apparently is not familiar with.
Murder is a common barometer for violent crime because it is nearly
always reported. The homicide rate in America in 1999 was 5.7 per
100,000, more than three times the rate of other industrialized
countries. The figure has dropped from 9.8 per 100,000 in 1991, and has
not been this low since 1966.
Yet these national figures mask an extraordinary differential
between black and white homicide rates. In 1999, the murder rate for
white offenders was 3.5 per 100,000double that of some European
countries. The rate among blacks was 25.5, seven times the white rate.
In 1991, the disparity was even greater-5.7 for whites and 50.4 for
blacks. The victimization rate is similarly disproportionate. A young
black male living in Detroit or the District of Columbia from age 16 to
25 is half as likely to ``die in combat'' as was a U.S. soldier during
World War II. While murder rates among whites have been in a slight but
steady decline over the past 20 years, murder rates among blacks have
fluctuated wildly. Indeed, the dramatic rise and fall of murder rates
over the past 25 years is almost entirely a reflection of black crime
rates.
The figures for other violent crimes reflect the same pattern.
While only 13 percent of the population, blacks commit 46 percent of
all robberies and 21 percent of rapes. The victims of rape and armed
robbery survive, and reports of the racial identity of the offender are
highly reliable. Blacks are arrested for rape and robbery in the same
proportions, indicating there is no bias in the system. More than 68
percent of all crimes of violence occur among blacks. The term ``among
blacks'' is very precise. Interracial crimes usually get more press
coverage, but that's because they are less common. More than 85 percent
of murders are intraracial. Black-on-black killings are 42 percent of
all killings, while white-on-white killings are 46 percent. Only 15
percent of white victims were murdered by blacks, and only 6 percent of
black victims were murdered by whites.
It has been argued that whites do not have to resort to violence,
and that they commit their crimes in a white collar venue. ``Some will
rob you with a six-gun, some with a fountain pen,'' as the old song
goes. But this turns out to be untrue as well. Although under
represented in the white-collar work force, blacks commit more than 30
percent of all fraud, forgery, and counterfeiting and 25 percent of all
embezzlements. In New York City recently, a black office worker was
found to be robbing banks on his lunch hour. His coworkers had often
remarked on his remarkable resemblance to the ``Wanted'' pictures they
had seen posted in neighborhood banks.
This pattern is so pervasive that people become inured. Here, for
example, is a chronicle of all the murders reported in the Daily News
from a period of one week, chosen randomly by throwing a dart at a
calendar (early May, as it happens).
A 65-year-old black man was killed in Harlem when he
was caught in the crossfire between two drug gangs.
A 42-year-old black man in Brooklyn was stabbed and
killed by his black girlfriend.
A 54-year-old black man in the Bronx shot and killed a
37-year-old black vagrant when he found him vandalizing his
car.
A 17-year-old Hispanic man was charged with beating to
death his girlfriend's 2-year-old son.
An 11-year-old Hispanic girl was raped and killed in
her apartment building by a 43-year-old black ex-convict who
lived in the next-door apartment.
A 32-year-old black female livery driver was shot and
killed on the job by her Hispanic ex-boyfriend.
A black Brooklyn teenager was fatally stabbed during a
street argument.
A white woman and two white men were shot execution-
style in her apartment in Manhattan during a drug robbery. The
woman, who once had a bit part in Dirty Dancing, had dealt
marijuana for years. Two black ex-convicts were identified as
the suspected killers.
The fire department discovered the body of a black
woman in a vacant lot.
An 80-year-old white woman in Greenwich Village was
stabbed to death in her apartment. A few days later, a 28-year-
old black female drug addict was arrested. The woman had
befriended the drug addict and often let her use her phone.
A newborn black baby was found dead under the
boardwalk at Conev Island. The mother was being sought.
During the same week, the FBI gunned down a 35-year-old Pakistani
fugitive in a midtown hotel. The man was wanted for kidnapping a 17-
year-old girl in Las Vegas and subsequently killing a man during a
carjacking. Also, the daughter of Bronx borough president Fernando
Ferrer complained that she had been racially profiled after being
stopped for a traffic violation.
Why is racial profiling seen as such a critical issue among all
this mayhem? The main reason, I think, is the tendency of any group to
externalize evil. It is much more reassuring to perceive violence and
evil coming from without than within. Thus, the killing of a single
black man by a group of mostly white police officers is remembered
years afterwards while the day-to-day mayhem goes virtually unnoticed.
Is there anything that can be done to stem this tide of violence?
Continued law enforcement has already brought big dividends. It is an
open question whether those dividends will continue in the face of a
national crusade against racial profiling. Police are likelier to throw
up their hands and tolerate greater disorder than they are to be
aggressive and risk accusations of profiling.
But there is one place where the justice system does egregiously
and visibly discriminate, and it is overdue for attention by crusaders
targeting racial injustice. Studies have shown that prosecutors,
judges, and juries are six times less likely to impose capital
punishment when the murder victim is black rather than white. This
probably helps to explain why blacks are six times more likely than
whites to be murder victims. It is also why black convicts are under
represented on death row. Most of their murders are committed against
other blacks.
During the 1930s, when similar, although less pervasive, violence
engulfed Italian neighborhoods, cities often adopted a tacit policy not
to lean too heavily on enforcing the law. ``They only kill each other''
was the byword. As long as killing was confined to other gangsters, the
justice system turned a blind eye. Only when the violence spilled into
the larger society was it punished. The same principle remains a
constant temptation for police today, and the campaign against racial
profiling will only encourage it. When blacks kill other blacks, the
system is less responsive.
Enforcing the death penalty for black-on-black murder would be the
best way to break the back of the cycle of violence in black
communities. It would also be highly embarrassing. It would explode the
myth that violence comes from outside the black community and that
bigoted law enforcement or white-on-black crime is the principal
problem. More than 85 percent of the additional people put on death row
would be black.
It's a painful and difficult decision for liberals and their
African-American political allies to face. It's certainly
understandable why they prefer to go on hand-wringing over ``racial
profiling.''
Victims of Crime and Leniency,
Montgomery, Alabama,
July 31, 2001
Chairman Russell D. Feingold
Subcommittee on Constitution,
Federalism, and Property Rights
U.S. Senate
Washington, D.C. 20510
Ranking Member Strom Thurmond
Subcommittee on Constitution,
Federalism, and Property Rights
U.S. Senate
Washington, D.C. 20510
Dear Chairman Feingold and Ranking Member Thurmond:
I am the Executive Director of statewide victim's rights
organization in Alabama. I have been apprised of S. 989--Racial
Profiling and I am very disturbed over the content of this bill. We,
too, abhor treating someone differently due to the color of their skin
however, I am afraid this legislation will only create the very chasm
it is intended to avoid.
VOCAL. (Victims of Grime and Leniency) has been counseling,
supporting and legislating for crime victims since 1982. Crime is
color-blind, yet we know a majority of crime victims unfortunately, are
minorities. I fear that S. 989 is so restrictive that law enforcement
will become intimidated, be fearful of unwarranted reprisals and we
will become a society with no protection at all. We cannot keep tying
the hands of law enforcement and expect protection at the same time.
Racial Profiling is deplorable but it should be dealt with more
effectively than this bill provides.
We ask that you prayerfully consider all crime victims as you hold
this hearing and we hold you in our prayers as you weigh the pro's and
con's of this legisiation.
Respectfully,
Miriam Shehane
Executive Director
Article by George F. Will, Washington Post, April 19, 2001
Exposing the `Myth' of Racial Profiling
It is former senator Eugene McCarthy's axiom: Anything said three
times in Washington becomes a fact. So it now is a fact, universally
attested and detested, that racial profiling is a widespread police
tactic. Everyone says so, especially since the disturbances in
Cincinnati set off a riot of television chatter, many of the chatterers
having no direct knowledge of that city, or of policing.
Even George W. Bush has made an obligatory genuflection at the
altar of the conventional wisdom--``Racial profiling is wrong and we
will end it in America''--and Attorney General John Ashcroft is
encouraging the rapidly increasing trend of states requiring police to
record racial data on traffic stops and searches. So who is Heather Mac
Donald to cast decisive doubt on the prevalence, even the existence, of
racial profiling?
She is the indispensable journalist. If you question that
characterization, you have not read her just-published collection of
essays, ``The Burden of Bad Ideas: How Modern Intellectuals Misshape
Our Society.'' Read it after you read her latest dissection of such an
idea, ``The Myth of Racial Profiling,'' in City Journal, published by
the Manhattan Institute.
Mac Donald distinguishes, as anti-racial profiling crusaders rarely
do, between ``hard'' and ``soft'' profiling. The latter uses race as
one factor among others in estimating criminal suspiciousness. As when,
Mac Donald says, police have intelligence that in the Northeast drug-
shipping corridor many traffickers are Jamaicans favoring Nissan
Pathfinders.
Charges of racial profiling usually arise from data about traffic
stops, data that supposedly vindicate complaints that minorities are
victimized merely because they are ``driving while black.'' But data
about ``disproportionate'' stops of minority drivers are worthless
without additional information that would be necessary to substantiate
the charge that ``too many'' minority drivers are being stopped,
searched and arrested.
Most anti-profilers concede that most stops arise from an actual
traffic Weekly Sections violation (e.g., the Pathfinder is speeding or
has visible illegal defects, such as nonfunctioning lights). So, Mac
Donald writes, it is pertinent to know whether disproportionate numbers
of minorities drive recklessly or drive defective vehicles, or whether
they drive at times when, or in places where, police are, for good law
enforcement reasons, particularly attentive. And the validity of the
data purporting to document ``disproportion'' depends on comparisons of
the amount of driving done by different racial groups, so that stops
per man-mile, rather than just stops per person, could be compared. Do
minorities commit more of the kinds of traffic violations that most
attract police attention? Data (about intoxication, and involvement in
injury and fatality accidents) suggest so.
Mac Donald says that of course there is ``soft'' profiling in the
sense that some vehicles are stopped because, in addition to some
infraction, the driver and the kind of vehicle and the direction and
the number and type of occupants fit the profile of a drug courier. Yet
anti-profilers insist, as does Sen. Robert Torricelli from the corridor
state of New Jersey, that there is no evidence ``that certain ethnic or
racial groups disproportionately commit crimes. They do not.''
But of course they do. And once a traffic stop is made, any
subsequent search of the vehicle is apt to be triggered by behavioral
cues (nervousness, conflicting stories) on the part of the vehicle's
occupants, cues having nothing to do with race or ethnicity.
In 1999, during hysteria about profiling, then-Gov. Christine Todd
Whitman fired New Jersey's state police superintendent because he
uttered a truism often confirmed by the Drug Enforcement
Administration--that minority groups dominate cocaine and marijuana
trafficking. Mac Donald reports that New Jersey's state police ``no
longer distribute a typical felony offender profile to their officers''
because such profiles might contribute to what the state's attorney
general calls ``inappropriate stereotypes'' about criminals. Here
``inappropriate'' is a synonym not for ``inaccurate'' but for
``inconvenient.''
It is an awkward fact, but it is a fact even though there may not
be three Washingtonians rash enough to utter it: Felons are not evenly
distributed across society's demographic groups. Many individuals and
groups specialize in hurling accusations of racism, and police become
vulnerable to such accusations when they concentrate their efforts
where crime is.
If that accusation begins to control policing, public safety will
suffer--especially the safety of minorities in violent and drug-
infested neighborhoods. Those neighborhoods, where the primary
complaint against the police usually is that they are too few in number
and too tentative against predators, are not the neighborhoods where
anti-profiling crusaders are apt to live.
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