[Senate Hearing 112-944]
[From the U.S. Government Publishing Office]
S. Hrg. 112-944
ENDING RACIAL PROFILING IN AMERICA
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
----------
APRIL 17, 2012
----------
Serial No. J-112-70
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 112-944
ENDING RACIAL PROFILING IN AMERICA
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
APRIL 17, 2012
__________
Serial No. J-112-70
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
CHUCK SCHUMER, New York ORRIN G. HATCH, Utah
DICK DURBIN, Illinois JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Human Rights
DICK DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont LINDSEY GRAHAM, South Carolina,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
AL FRANKEN, Minnesota JON KYL, Arizona
CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah
TOM COBURN, Oklahoma
Joseph Zogby, Democratic Chief Counsel
Walt Kuhn, Republican Chief Counsel
C O N T E N T S
----------
APRIL 17, 2012, 10:00 A.M.
STATEMENTS OF COMMITTEE MEMBER
Page
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1
prepared statement........................................... 129
WITNESSES
Witness List..................................................... 43
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 4
prepared statement........................................... 45
Chu, Hon. Judy, a Representative in Congress from the State of
California..................................................... 9
prepared statement........................................... 49
Clegg, Roger, President and General Counsel, Center for Equal
Opportunity, Falls Church, Virginia............................ 20
prepared statement........................................... 51
Conyers, Jr., Hon. John, a Representative in Congress from the
State of Michigan.............................................. 5
Davis, Ronald L., Chief of Police, City of East Palo Alto,
California..................................................... 12
prepared statement........................................... 59
Ellison, Hon. Keith, a Representative in Congress from the State
of Minnesota................................................... 8
prepared statement........................................... 66
Gale, Frank, National Second Vice President, Grand Lodge,
Fraternal Order of Police, Denver, Colorado.................... 17
prepared statement........................................... 67
Gutierrez, Hon. Luis V., a Representative in Congress from the
State of Illinois.............................................. 6
prepared statement........................................... 76
Harris, David A., Professor of Law and Associate Dean for
Research, University of Pittsburgh School of Law, Pittsburgh,
Pennsylvania................................................... 21
prepared statement........................................... 81
Romero, Anthony, Executive Director, American Civil Liberties
Union, New York, New York...................................... 15
prepared statement........................................... 100
Wilson, Hon. Frederica, a Representative in Congress from the
State of
Florida........................................................ 10
prepared statement........................................... 127
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
African American Ministers in Action (AAMIA), A Project of People
For the American Way, Minister Leslie Watson Malachi, Director,
statement...................................................... 131
African American Ministers in Action et al., April 17, 2012,
letter......................................................... 507
Alliance for a Just Society, LeeAnn Hall, Executive Director,
statement...................................................... 141
American-Arab Anti-Discrimination Committee (ADC), Washington,
DC, statement.................................................. 166
American Civil Liberties Union (ACLU) of Illinois, Harvey
Grossman, Legal Director, statement............................ 145
American Friends Service Committee (AFSC), Philadelphia,
Pennsylvania, statement........................................ 150
American Immigration Lawyers Association (AILA), Washington, DC,
statement...................................................... 162
Americans for Immigrant Justice, Cheryl Little, Executive
Director, statement............................................ 168
Amnesty International USA, Suzanne Nossel, Executive Director,
statement...................................................... 172
Anti-Defamation League (ADL), Deborah M. Lauter, Director, Civil
Rights, Michael Lieberman, Washington Counsel, and Stacy
Burdett, Washington Director, statement........................ 183
Arab American Institute, The, Danielle Malaty, Manager,
Government Relations in Domestic Policy, statement............. 187
Asian American Center for Advancing Justice, April 17, 2012,
statement...................................................... 192
Bill of Rights Defense Committee (BORDC), Shahid Buttar,
Executive Director, statement.................................. 195
Black Alliance for Just Immigration (BAJI), Gerald Lenoir,
Executive Director, statement.................................. 198
Brennan Center for Justice at New York University School of Law,
Faiza Patel and Elizabeth Goitein, Co-Directors, Liberty and
National Security Program, statement........................... 201
``Call the NYPD,'' photo campaign on social media, statement..... 213
Center for Constitutional Rights (CCR), Vincent Warren, Executive
Director, statement............................................ 216
Center for Latino Progress--CPRF, Yanil Teron, Executive
Director, statement............................................ 225
Citizens United for Rehabilitation of Errants (CURE)--Virginia,
Carla Peterson, Executive Director, statement.................. 607
City of Riverside Police Department, Riverside, California,
Sergio G. Diaz, Chief of Police, statement..................... 228
City of Seattle Immigrant and Refugee Commission, Seattle,
Washington, Jesus Y. Rodriguez and Devon Abdallah, Co-Chairs,
statement...................................................... 231
Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA),
Los Angeles, California, Angelica Salas, Executive Director,
statement...................................................... 235
Comunidad Liberacion/Liberation Community, Rev. Anne Dunlap,
Pastor, statement.............................................. 239
Council on American-Islamic Relations (CAIR), Robert S. McCaw,
statement...................................................... 253
Council on American-Islamic Relations (CAIR-Chicago), Chicago,
Illinois, statement............................................ 242
Defending Dissent Foundation (DDF), Woody Kaplan, President,
statement...................................................... 257
Delta Sigma Theta Sorority, Incorporated, Cynthia Butler
McIntyre, President, statement................................. 264
Desis Rising Up and Moving (DRUM), Fahd Ahmed, Legal and Policy
Director, statement............................................ 267
Drug Policy Alliance, Jasmine L. Tyler, Deputy Director, National
Affairs, statement............................................. 272
Episcopal Church, The, Bishop Stacy F. Sauls, Chief Operating
Officer, statement............................................. 282
Hip Hop Caucus, April 17, 2012, statement........................ 289
Homies Unidos, Alexander Sanchez, Executive Director, statement.. 293
Houston United/Houston Unido, Jannell Robles, Crimmigration
Committee Chair, statement..................................... 297
Human Rights Watch, Antonio M. Ginatta, U.S. Program Advocacy
Director, statement............................................ 302
Illinois Association of Chiefs of Police (ILACP), R.T. Finney,
President and Retired Chief, Champaign Police Department,
Champaign, Illinois, statement................................. 306
Illinois Coalition for Immigrant and Refugee Rights (ICIRR), Fred
Tsao, Policy Director, statement............................... 310
Immigration Equality, Rachel B. Tiven, Executive Director,
statement...................................................... 312
Indo-American Center (IAC), Jay Luthra, Executive Director,
statement...................................................... 315
Interfaith Alliance, Rev. Dr. C. Welton Gaddy, President,
statement...................................................... 318
Inter-Faith Committee on Latin America (IFCLA)--St. Louis,
Missouri, Marilyn Lorenz-Weinkauff, Program Coordinator,
statement...................................................... 519
International Center for Advocates Against Discrimination
(ICAAD), Hansdeep Singh and Jaspreet Singh, Co-Founders and
Legal Program Directors, statement............................. 320
Japanese American Citizens League (JACL), Floyd Mori, National
Executive Director, statement.................................. 327
Kalamazoo Department of Public Safety, Kalamazoo, Michigan, Chief
Jeff Hadley, statement......................................... 332
Lawyers' Committee for Civil Rights Under Law, Washington, DC,
statement...................................................... 333
Leadership Conference on Civil and Human Rights, The, et al.,
Washington, DC, April 16, 2012, letter......................... 342
Leadership Conference on Civil and Human Rights, The, Wade
Henderson, President and Chief Executive Officer, statement.... 554
Maine People's Alliance (MPA), Charlene Childs, Assistant to the
Executive Director, statement.................................. 347
Meiklejohn Civil Liberties Institute, Ann Fagan Ginger, Executive
Director Emeritus, statement................................... 352
Metro Atlanta Task Force for the Homeless, Anita L. Beaty,
Executive Director, statement.................................. 356
Migrant Justice, Burlington, Vermont, April 17, 2012, statement
to Senator Durbin.............................................. 359
Migrant Justice, Burlington, Vermont, April 17, 2012, statement
to Senator Leahy............................................... 363
Missouri Immigrant and Refugee Advocates, Vanessa Crawford,
Executive Director, statement.................................. 367
Montana Organizing Project, Molly Moody, and Indian People's
Action, Michaelynn Hawk, statement............................. 371
Montgomery County Civil Rights Coalition (MCCRC), Sue Udry, Co-
Founder, statement............................................. 375
Muslim Advocates and 27 American Muslim, Arab, Middle Eastern,
and South Asian Organizations, April 17, 2012, statement....... 379
Muslim Legal Fund of America, Coleen Rowley, Vice President,
Board of Directors, statement.................................. 390
Muslim Public Affairs Council (MPAC), Salam Al-Marayati,
President, statement........................................... 407
National Action Network (NAN), Reverend Al Sharpton, President
and Founder, Reverend Dr. W. Franklyn Richardson, Chairman, and
Tamika Mallory, National Executive Director, statement......... 417
National Asian Pacific American Bar Association (NAPABA), Tina
Matsuoka, Executive Director, statement........................ 420
National Association for the Advancement of Colored People
(NAACP), Benard H. Simelton, President, Alabama State
Conference of the NAACP, statement............................. 135
National Association for the Advancement of Colored People
(NAACP), Hilary O. Shelton, Director, Washington Bureau, and
Senior Vice President for Advocacy and Policy, statement....... 412
National Association of Social Workers (NASW), Melvin H. Wilson,
Manager, Department of Social Justice and Human Rights,
statement...................................................... 424
National Black Caucus of State Legislators (NBCSL), LaKimba B.
DeSadier, Executive Director, statement........................ 426
National Coalition for Immigrant Women's Rights (NCIWR), April
17, 2012, statement............................................ 437
National Congress of American Indians (NCAI), Washington, DC,
statement...................................................... 443
National Council of La Raza (NCLR), Laura Vazquez, Immigration
Legislative Analyst, statement................................. 446
National Gay and Lesbian Task Force Action Fund, Rea Carey,
Executive Director, statement.................................. 457
National Hispanic Media Coalition (NHMC), Alex Nogales, President
and Chief Executive Officer, statement......................... 461
National Immigrant Justice Center (NIJC), Mary Meg McCarthy,
Executive Director, statement.................................. 285
National Immigration Forum, Ali Noorani, Executive Director,
statement...................................................... 464
National Immigration Law Center (NILC), April 17, 2012, statement 467
National Korean American Service and Education Consortium
(NAKASEC), Morna Ha, Executive Director, statement............. 474
National Network for Arab American Communities (NNAAC), Nadia
Tonova, Director, statement.................................... 478
NETWORK, A National Catholic Social Justice Lobby, Sr. Mary Ellen
Lacy D.C., statement........................................... 482
New England Muslim Bar Association (NEMBA), Shannon Erwin,
President, statement........................................... 485
North American South Asian Bar Association (NASABA), Jolsna John,
President, statement........................................... 490
Oregon Action, Ron Williams, Executive Director, statement....... 494
Our Lady of Victory Missionary Sisters, Sister Beatrice Haines,
OLVM, President, statement..................................... 497
Pax Christi USA, April 13, 2012, statement....................... 500
Providence Youth Student Movement (PrYSM), Chanravy Proeung,
Executive Director, statement.................................. 501
Rights Working Group (RWG), Margaret Huang, Executive Director,
statement...................................................... 509
San Francisco District Attorney's Office, San Francisco,
California, George Gascon, District Attorney, statement........ 522
Sikh American Legal Defense and Education Fund (SALDEF), Jasjit
Singh, Associate Executive Director, statement................. 524
Sikh Coalition, New York, New York, statement.................... 528
Sisters of the Most Precious Blood of O'Fallon, Missouri, The
Leadership Team, statement..................................... 531
Sojourners, Lisa Sharon Harper, Director of Mobilizing, statement 533
South Asian Americans Leading Together (SAALT), Deepa Iyer,
Executive Director, statement.................................. 538
South Asian Bar Association of New York (SABANY), Neha Dewan,
President, statement........................................... 546
South Asian Bar Association of Northern California, Minal J.
Belani, Esq., Civil Rights Co-Chair, statement................. 544
Southern Poverty Law Center (SPLC), Mary Bauer, Legal Director,
statement...................................................... 549
Virginia Organizing, Joe Szakos, Executive Director, statement... 608
Washington Community Action Network (Washington CAN), Jill Reese
and Rachel Berkson, Co-Executive Directors, statement.......... 611
Washington Defender Association (WDA), Travis Stearns, Deputy
Director, statement............................................ 615
Women's Voices Raised for Social Justice, Alice Serrano,
statement...................................................... 620
ENDING RACIAL PROFILING IN AMERICA
----------
TUESDAY, APRIL 17, 2012
United States Senate,
Subcommittee on the Constitution, Civil Rights and
Human Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin,
Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Franken, Coons, Blumenthal, and
Graham.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chairman Durbin. Good morning. This hearing of the
Subcommittee on the Constitution, Civil Rights and Human Rights
will come to order.
Our hearing today will focus on a civil rights issue that
goes to the heart of America's promise of equal justice under
law: protecting all Americans from the scourge of racial
profiling.
Racial profiling is not new. At the dawn of our Republic,
roving bands of white men known as ``slave patrols'' subjected
African American freedmen and slaves to searches, detentions,
and brutal violence. During the Great Depression, many American
citizens of Hispanic descent were forcibly deported to Mexico
under the so-called Mexican repatriation. And during World War
II, tens of thousands of innocent Japanese Americans were
rounded up and held, confined in internment camps.
Twelve years ago--12 years ago--in March 2000, this
Subcommittee held the Senate's first ever hearing on racial
profiling. It was convened by then-Senator John Ashcroft, who
would later be appointed Attorney General by President George
W. Bush.
In February 2001, in his first Joint Address to Congress,
President Bush said that racial profiling is ``wrong and we
will end it in America.'' We take the title of today's hearing
from the promise President Bush made that night 11 years ago.
In June 2001, our former colleague Senator Russ Feingold of
Wisconsin, my predecessor as Chairman of this Subcommittee,
held the Senate's second, and most recent, hearing on racial
profiling. I was there. There was bipartisan agreement about
the need to end racial profiling.
Then came 9/11. In the national trauma that followed, civil
liberties came face to face with national security. Arab
Americans, American Muslims, and South Asian Americans faced
national origin and religious profiling. To take one example,
the Special Registration program targeted Arab and Muslim
visitors, requiring them to promptly register with the INS or
face deportation. At the time I called for the program to be
terminated. There were serious doubts if it would help us in
any way to combat terrorism.
Terrorism experts have since concluded that Special
Registration wasted homeland security resources and, in fact,
alienated patriotic Arab Americans and American Muslims. More
than 80,000 people registered under that program; more than
13,000 were placed in deportation proceedings. Even today, many
innocent Arabs and Muslims face deportation because of Special
Registration. So how many terrorists were identified by the
Special Registration program? None.
Next Wednesday, the Supreme Court will hear a challenge to
Arizona's controversial immigration law. The law is one example
of a spate of Federal, State, and local measures in recent
years that, under the guise of combating illegal immigration,
have subjected Hispanic Americans to an increase in racial
profiling.
Arizona's law requires police officers to check the
immigration status of any individual if they have ``reasonable
suspicion'' that the person is an undocumented immigrant. Well,
what is the basis for reasonable suspicion? Arizona's guidance
on the law tells police officers to consider factors such as
how someone is dressed and their ability to communicate in
English. Two former Arizona Attorneys General, joined by 42
other former State Attorneys General, filed an amicus brief in
the Arizona case in which they said, ``application of the law
requires racial profiling.''
And, of course, African Americans continue to face racial
profiling on the streets and sidewalks of America. The tragic,
tragic killing of Trayvon Martin is now in the hands of the
criminal justice system, but I note that, according to an
affidavit filed by investigators last week, the accused
defendant ``profiled'' Trayvon Martin and ``assumed Martin was
a criminal.'' The senseless death of this innocent young man
has been a wake-up call to America.
And so 11 years after the last Senate hearing on racial
profiling, we return to the basic question: What can be done to
end racial profiling in America?
We can start by reforming the Justice Department's racial
profiling guidance issued in 2003 by Attorney General John
Ashcroft. The guidance prohibits the use of profiling by
Federal law enforcement in ``traditional law enforcement
activities,'' and that is a step forward.
However, this ban does not apply to profiling based on
religion and national origin, and it does not apply to national
security and border security investigations. In essence, these
exceptions are a license to profile American Muslims and
Hispanic Americans. As the nonpartisan Congressional Research
Service concluded, the guidance's ``numerous exceptions'' may
``invite broad circumvention'' for ``individuals of . . .
Middle Eastern origin'' and ``profiling of Latinos . . . would
apparently be permitted.''
Today Congressman John Conyers and I are sending a letter,
signed by 13 Senators and 53 Members of the House, asking
Attorney General Holder to close the loopholes in the Justice
Department's racial profiling guidance.
Congress should also pass the End Racial Profiling Act, and
I welcome the attendance of my colleague and a former Member of
this Committee, Senator Cardin of Maryland, who has taken up
this cause from our colleague Senator Feingold, and he is here
today to testify.
Let us be clear, and I want to say this and stress it: The
overwhelming majority of law enforcement officers perform their
jobs admirably, honestly, and courageously. They put their
lives on the line to protect us every single day. But the
inappropriate actions of the few who engage in racial profiling
create mistrust and suspicion that hurt all police officers. We
will hear testimony to what has been done in a positive way to
deal with this issue by a superintendent of police. That is why
so many law enforcement leaders strongly oppose racial
profiling.
Racial profiling undermines the rule of law and strikes at
the core of our Nation's commitment to equal protection for
all. As you will hear from the experts on our panel today, the
evidence clearly demonstrates that racial profiling simply does
not work.
I hope today's hearing can be a step toward ending racial
profiling in America at long last.
Senator Graham is running a little late. Senator Leahy is
out of the Senate this morning but was kind enough to allow me
to convene this hearing, and I am sure he will add a statement
to the record.
[The prepared statement of Chairman Dick Durbin appears as
a submission for the record.]
Chairman Durbin. I am going to open the floor to Senator
Graham when he does arrive, but for the time being, because we
have many colleagues here who have busy schedules of their own,
I want to turn to the first panel of witnesses.
At the outset, I do want to note that I invited the
Department of Justice to participate in today's hearing, but
they declined.
We are honored to be joined today by our colleagues from
the Senate and the House. In keeping with the practice of this
Committee, first we will hear from Members of the Senate, then
Members of the House, a practice which I loathed in the House,
but now that we are running this show, I am afraid you are just
going to have to live with it, my House colleagues.
Each witness will have 3 minutes for an opening statement.
Your complete written statement will be included in the record.
The first witness is Senator Cardin--he is a former Member
of this Committee--Senate sponsor of S. 1670, the End Racial
Profiling Act, which I am proud to cosponsor. This is Senator
Cardin's second appearance before this Subcommittee. He
testified before us last year at the first ever hearing of this
Committee on the civil rights of American Muslims.
Senator Cardin, we are pleased that you could join us today
and please proceed.
STATEMENT OF HON. BENJAMIN L. CARDIN,
A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Well, Senator Durbin, first let me thank
you for your leadership on this Subcommittee. The fact that we
have this Subcommittee is a testament to your leadership in
making clear that civil and human rights are going to be a
priority of the U.S. Senate. So I thank you for your leadership
and thank you very much for calling this hearing.
It is a pleasure to be here with all my colleagues, but I
particularly wanted to acknowledge Congressman Conyers and his
extraordinary life of leadership on behalf of civil rights and
these issues. Congressman Conyers was a real mentor to me when
I was in the House, and he still is, and we thank you very much
for your leadership on this issue.
Senator Durbin, you pointed out that the Nation was
shocked--if I could ask unanimous consent to put my entire
statement in the record along with the list of the many
organizations that are supporting the legislation that I filed,
S. 1670.
As you pointed out, Senator Durbin, the Nation was shocked
by the tragedy that took place in Sanford, Florida, the tragic
death of 17-year-old Trayvon Martin, a very avoidable death.
And the question I think most people are asking--and we want
justice in this case, and we are pursuing that, and we have a
Department of Justice investigation, and we all very much want
to see that investigation carried out, not only to make sure
that justice is carried forward as far as those responsible for
his death, but also as to how the investigation itself was
handled.
But I think the question that needs to be answered is
whether race played a role in Trayvon Martin being singled out
by Mr. Zimmerman, and that, of course, would be racial
profiling, an area that we all believe needs to be--we need to
get rid of that as far as the legitimacy of using racial
profiling in law enforcement.
In October of last year, I filed the End Racial Profiling
Act, and as you pointed out, carrying on from Senator
Feingold's efforts on behalf of this legislation. I thank you
very much for your leadership as a cosponsor. We have 12
Members of the Senate who have cosponsored this legislation,
including the Majority Leader, Senator Harry Reid, is a
cosponsor.
Racial profiling is un-American. It is against the values
of our Nation. It is contrary to the 14th Amendment to the
Constitution's ``equal protection of the laws.'' It is
counterproductive in keeping us safe. It is wasting the
valuable resources that we have, and it has no place in modern
law enforcement. We need a national law, and that is why I
encourage the Committee to report S. 1670 to the floor.
It prohibits the use of racial profiling, that is, using
race, ethnicity, national origin, or religion in selecting
which individual is to be subject to a spontaneous
investigation, activity such as a traffic stop, such as
interviews, such as frisks, et cetera. It applies to all levels
of government. It requires mandatory training, data collection
by local and State law enforcement, and a way of maintaining
adequate policies and procedures designated to end racial
profiling. The States are mandated to do that or risk the loss
of Federal funds. The Department of Justice is granted the
authority to make grants to State and local governments to
advance the best practices. As I pointed out, it has the
support of numerous groups, and you will be hearing from some
of them today.
Let me just conclude--because my statement will give all
the details of the legislation--by quoting our former colleague
Senator Kennedy when he said, ``Civil rights is the great
unfinished business of America.'' I think it is time that we
move forward in guaranteeing to every citizen of this country
equal justice under law, and S. 1670 will move us forward in
that direction.
[The prepared statement of Senator Cardin appears as a
submission for the record.]
Chairman Durbin. Thanks, Senator Cardin.
I might also add that we are at capacity in this room, and
anyone unable to make it inside the room, we will have an
overflow room in Dirksen G50, which is two floors below us
here.
Senator Graham suggests that we proceed with the witnesses.
Next up is Congressman John Conyers, the House sponsor of the
End Racial Profiling Act and Ranking Member of the House
Judiciary Committee. Serving in the House of Representatives
since 1965, John Conyers is the second longest serving Member,
I think second to another Member from Michigan, if I am not
mistaken. Congressman Conyers testified at both the previous
Senate hearings on racial profiling in 2000 and 2001.
Congressman Conyers, we are honored to have you here as a
witness, and the floor is yours.
STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Representative Conyers. Thank you, Mr. Chairman, and to
your colleague, who is another former House Member, if I
remember correctly, and Senator Ben Cardin as well. All of you
are working in the backdrop of a huge discussion that has been
going on for quite some time.
When I came to the Congress and asked to go on the
Judiciary Committee in the House and that was granted, Emanuel
Celler was then the Chairman, who did such landmark work in the
Civil Rights Act of 1964. And then we followed up with the
Voter Rights Act of 1965. And from that time on, a group of
scholars, activist organizations, civil rights people, and
Americans of good will have all begun examining what brings us
here today and accountable for the incredible long line that is
waiting to get into this and the holding room today.
I come here proud of the fact that there is support growing
in this area. Only yesterday we had a memorial service for John
Payton, known by most of us here for the great work that he has
done and contributed in civil rights, not just in the courts
and in the law but in what I think is the purpose of our
hearing here today, namely, to have honest discussions about
this subject so that we can move to a conclusion of this part
of our history. And so I am just so proud of all of you for
coming here and continuing this discussion because it is going
to turn on more than just the legislators or the Department of
Justice, and I am with you in improving some of their
recommendations, and I commend Eric Holder for the enormous job
that he has been doing in that capacity.
But this is a subject that is a part of American history.
The one thing that I wanted to contribute here is what racial
profiling is not. Racial profiling does not mean we cannot
refer to the race of a person if it is subject-specific or
incident-specific. We are not trying to take the description of
race out of law enforcement and its administration. What we are
saying is that racial profiling must not be subject-specific or
incident-specific. That is what we are trying to do here today.
It is a practice that is hard to root out. I join in
praising the overwhelming majority of law enforcement men and
women who want to improve this circumstance, but, you know, one
of the greatest race riots in Detroit that occurred was because
of a police incident was started. We have in Detroit right now
a coalition against police brutality. Ron Scott, an activist
and a law student, is working on that, has been working there
for years.
And so we encourage not only this legislative discussion
about an important subject, but we--and we praise our civil
rights organizations that have been so good at this--the NAACP,
the Legal Defense Fund of NAACP, the American Civil Liberties
Union, and scores of coalitions of community and State
organizations that have all been working on this, just as we
have and are.
So I believe that there is going to be a time very soon
when we will pass the legislation that you have worked on in
the House and the Senate and that we will enjoy that day
forward when we will celebrate this movement forward to take
the discussion of race out of our national conversation, not
because we are sick and tired of it, but because it is not
needed any further.
I thank you very much for this invitation.
Chairman Durbin. Congressman Conyers, it is an honor to
have you in the Senate Judiciary Committee hearing. I thank you
very much.
Our next witness is my friend and Illinois colleague
Congressman Luis Gutierrez, who represents the 4th
Congressional District and has done so since 1993. He chairs
the Congressional Hispanic Caucus' Immigration Task Force, and
he is a long-time champion for immigration reform. There are
many outstanding Hispanic political leaders in America, but
none more forceful and more articulate and more of a leader
than my colleague Congressman Gutierrez.
Thank you for joining us.
STATEMENT OF HON. LUIS V. GUTIERREZ, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Representative Gutierrez. Thank you so much, Chairman
Durbin and Ranking Member Graham, for inviting me to testify
here today. One of the proudest things I am being from the
State of Illinois is the senior Senator from my State. I am so
happy and delighted to be here with you, Senator Durbin.
I have traveled from coast to coast to visit dozens of
cities and communities and to listen to immigrants' stories.
Some of my colleagues have visited their cities that are here
with me today. And immigrants everywhere tell me that they are
regarded with suspicion. They tell me they are frequently
treated differently because of the way they look, sound, or
spell their last name.
In Alabama, I met 20-year-old Martha, a young woman raised
in the U.S. One late afternoon, while driving, she was pulled
over. She was arrested for driving without a license and jailed
so her status could be checked. Because her U.S. citizen
husband was not present, their Alabama-born 2-year-old son was
taken from the back seat of her car and turned over to the
State welfare agency.
In South Carolina, I met Gabino, who has been in the U.S.
for nearly 13 years. He is married, the father of two South
Carolina-born kids; he works hard and owns his own home.
Gambino was stopped because he was pulling into his mobile home
community, one of three other Hispanic residents stopped that
evening. Gambino was arrested for driving without a license,
and he was then placed in deportation proceedings.
We can all guess why the police chose to stop Gabino and
Martha. Profiling Hispanics and immigrants is the most
efficient way to get someone deported. But you cannot tell if
someone is undocumented by the way they look or dress or where
they live.
In Chicago, a Puerto Rican constituent of mine was detained
for 5 days under suspicion of being undocumented. Indeed,
sadly, Senators, there are hundreds if not thousands of cases
of unlawfully detained U.S. citizens and legal residents in the
United States each year in violation of their constitutional
rights. Some of them have even been deported and then been
brought back to the United States of America. That is not an
old story. That is a story of today.
The Federal Government took a step in the right direction
when it legally challenged the ``Show me your papers'' laws in
Alabama, South Carolina, and Arizona because the State laws are
unconstitutional and interfere with the Federal Government's
authority to set and enforce immigration policy. But it makes
no sense to file suit against unconstitutional laws on the one
hand and on the other hand allow those same laws to funnel
people into our detention centers and deportation pipeline.
Gabino has been denied relief from deportation because he
has been stopped too many times, according to the Federal
Government, for driving without a license. The Government is
complicit in such serial profiling because while the States
cannot deport Gabino and break up his family of American
citizens, the Federal Government is doing just that. And
programs like 287(g) and Secure Communities end up ensnaring
tens of thousands of Gabinos every year. Because of the racial
profiling, the programs incentivize.
If we are serious about truly ending racial profiling, we
need to back up our lawsuits with actions that protect families
and citizens and children and uphold our Constitution.
I guess the gist of it is I am happy when the Federal
Government says this is racial profiling, we are going to fight
it, and they go into the Federal court in Arizona, in South
Carolina, and in Alabama. But until we tell the local officials
if you continue your serial profiling, we are not going to
deport those people, they are going to continue to do it. It
just incentivizes. So I hope we can have a conversation about
that also.
Thank you so much for having me here this morning.
[The prepared statement of Representative Luis V. Gutierrez
appears as a submission for the record.]
Chairman Durbin. Thank you, Congressman Gutierrez.
Congressman Keith Ellison of Minnesota is serving his third
term representing the 5th Congressional District in that State.
He co-chairs the Congressional Progressive Caucus. Congressman
Ellison enjoys a moment in history here as the first Muslim
elected to the U.S. Congress. Previously he served two terms in
the Minnesota House of Representatives.
Congressman Ellison, welcome. The floor is yours.
STATEMENT OF HON. KEITH ELLISON, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MINNESOTA
Representative Ellison. Thank you, Senator Durbin. Also,
thank you, Senator Graham. Thank you for holding this important
hearing. Also, thank you for urging Attorney General Holder to
revise the Justice Department's racial profiling guidance. It
is very important. As you know, that guidance has a loophole
allowing law enforcement to profile American citizens based on
religion and national origin.
While any profiling of Americans based on race, ethnicity,
religion, or national origin is disturbing, I think it is
important also to note that it is poor law enforcement. Law
enforcement is a finite resource. Using law enforcement
resources for profiling as opposed to relying on articulable
facts based on behavior suggesting a crime is a waste of that
law enforcement resource. It leaves us less safe and more at
risk when we do not target based on conduct and behavior
suggestive of a crime but based on other considerations
informed by prejudice.
My comments today will focus on the religious profiling of
American Muslims. Up to 6 million Americans know what it is
like to be looked upon with suspicion in post-9/11 America,
perhaps even before. Although Muslim Americans work hard and
play by the rules and an infinitesimally small number do not,
many even live the American dream and send their kids to
college and earn a living just like everyone else. Yet many
know all too well what it means to be pulled off of an
airplane, pulled out of line, denied service, called names, or
even physically attacked.
Like other Americans, Muslim Americans want law enforcement
to uphold public safety and not be viewed as a threat, but as
an ally. When the FBI, for example, shows up at the homes and
offices of American Muslims who have not done anything wrong,
it makes them feel targeted and under suspicion, and it
diminishes the important connection between law enforcement and
citizen that is necessary to protect all of us.
When Muslim Americans get pulled out of line at an airport
and are questioned for hours, asked questions--and these are
questions actually asked: ``Where do you go to the mosque?''
``Why did you give them a $200 donation?'' ``Do you fast?''
``Do you pray?'' ``How often?'' When questions like this are
asked which have nothing to do with conduct or behavior
suggestive of a crime, it erodes the important connection
between law enforcement and citizen. No Americans should be
forced to answer questions about how they worship.
I was particularly disturbed when I heard stories coming
out of the controversy in New York about kids being spied on in
colleges at Muslim Student Associations. I was very proud when
my son was elected president of the Muslim Student Association
at his college, but I wonder: Was my 18-year-old son subject to
surveillance like the kids were at Yale, Columbia, and Penn? He
is a good kid, has never done anything wrong, and I worry to
think that he might be in somebody's files simply because he
wanted to be active on campus.
I am a great respecter of law enforcement, and I recognize
and appreciate the tough job they have to keep us safe. But I
think it is very important to focus on the proper use of law
enforcement resources and not to give an opening for someone's
stereotype or prejudice.
As one Bush administration official once said, ``religious
or ethnic or racial stereotyping is simply not good policing,''
and it threatens the values Americans hold dear. To fix this
problem once and for all, I urge the Attorney General to close
the loophole in the Justice Department's racial profiling
guidance, and I urge my colleagues in Congress to pass the End
Racial Profiling Act.
Thank you.
[The prepared statement of Representative Keith Ellison
appears as a submission for the record.]
Chairman Durbin. Thanks, Congressman Ellison. I could have
added in my opening statement comments made by President George
W. Bush after 9/11, which I thought were solid statements of
constitutional principle, particularly when it came to those
adherents of the Muslim faith, that our war is not against this
Islamic religion but against those who would corrupt it,
distort it, and misuse it in the name of terrorism. And I thank
you for your testimony.
Representative Ellison. Thank you, sir.
Chairman Durbin. Congresswoman Judy Chu represents the 32nd
District in California since 2009. She was the first Chinese
American woman ever elected to Congress. She chairs the
Congressional Asian Pacific American Caucus. Formerly she
served in the California State Assembly.
We are honored that you are here today. Please proceed.
STATEMENT OF HON. JUDY CHU, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Representative Chu. Thank you, Senator.
As Chair of the Congressional Asian Pacific American
Caucus, I am grateful for the opportunity to speak here today
about ending racial profiling in America. Asian Americans and
Pacific Islanders, like other minority communities, have felt
the significant effects of racial profiling throughout American
history, from the Chinese Exclusion Act to the Japanese
American interment and the post-9/11 racial profiling of Arabs,
Sikhs, Muslims, and South Asian Americans. We know what it is
like to be targeted by our own Government. It results in
harassment, bullying, and sometimes even violence.
In the House Judiciary Committee, we really listened to the
anguished testimony of Sikh Americans constantly humiliated as
they were pulled out of lines at airports because of their
turbans and made to wait in glass cages like animals on
display. They were pulled into rooms to be interrogated for
hours, and even infants were searched. This has forced Sikh
Americans and Muslim Americans to fly less frequently or remove
religious attire just to accommodate these unfairly targeted
practices.
And just last year, I was shocked to learn about the
activities of the New York Police Department and the CIA who
were secretly spying on Muslim Americans. Despite the lack of
any real evidence of wrongdoing, officers were monitoring
Muslim American communities and eavesdropping on families,
recording everything from where they prayed to the restaurants
they ate in. The NYPD entered several States in the Northeast
to monitor Muslim student organizations at college campuses.
These students had done nothing suspicious. The only thing they
were guilt of was practicing Islam.
This type of behavior by law enforcement is a regression to
some of the darkest periods of our history where we mistrusted
our own citizens and spied on their daily lives, and it has no
place in our modern society.
When law enforcement uses racial profiling against a group,
it replaces trust with fear and hurts communication. The
community and law enforcement instead need to be partners to
prevent crimes and assure the safety of all Americans.
When the civil liberties of any group are violated, we all
suffer. In fact, over 60 years ago, during World War II,
120,000 Japanese Americans lost everything that they had and
were relocated to isolated internment camps throughout the
country because of hysteria and scapegoating. In the end, not a
single case of espionage was ever proven, but there were not
enough voices to speak up against this injustice.
Today there must be those voices that will speak up. We
must stand up for the rights of all Americans. That is why I
urge all Members of Congress to support the End Racial
Profiling Act. We must protect the ideals of justice and equal
protection under the law so that our country is one where no
one is made to feel unsafe, unequal, or un-American because of
their faith or ethnicity.
Thank you.
[The prepared statement of Representative Judy Chu appears
as a submission for the record.]
Chairman Durbin. Thank you, Congresswoman.
The next witness is Congresswoman Frederica Wilson. She
represents the 17th Congressional District, which, as I
understand, includes Sanford, Florida. Previously she served in
the Florida House of Representatives from 1999 to 2002 and in
the Florida Senate from 2003 to 2010.
Congresswoman Wilson, thank you for joining us today, and
proceed.
STATEMENT OF HON. FREDERICA WILSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Representative Wilson. Thank you. I represent Miami, where
Trayvon is from. He was murdered in Sanford. Thank you.
Thank you, Chairman Durbin, Ranking Member Graham, Senator
Blumenthal, and other Members of the Subcommittee. I thank you
for inviting me to testify today on the issue of racial
profiling.
Last week, after 45 days, an arrest was finally made in the
shooting death of my constituent, Trayvon Martin. Trayvon was a
17-year-old boy walking home from a store. He was unarmed and
simply walking with Skittles and iced tea. He went skiing in
the winter and horseback riding in the summer. His brother and
best friend is a senior at Florida International University of
Miami. A middle-class family, but that did not matter. He was
still profiled, followed, chased, and murdered. This case has
captured international attention and will go down in history as
a textbook example of racial profiling.
His murder affected me personally, and it broke my heart
again. I have buried so many young black boys. It is extremely
traumatizing for me. When my own son, who is now a school
principal, learned how to drive, I bought him a cell phone
because I knew he would be profiled, and he was. He is still
fearful of law enforcement and what they might do when he is
driving. I have three grandsons, a 1-, a 3-, and a 5-year-old.
I hope we can solve this issue before they receive a driver's
license. I pray for them even now.
There is a real tension between black boys and the police,
not perceived but real. If you walk into any inner-city school
and ask the students, ``Have you ever been racially profiled?''
everyone will raise their hands--boys and girls. They have been
followed as they shop in stores. They have been stopped by the
police for no apparent reason. And they know at a young age
that they will be profiled.
I am a staunch child advocate. I do not care what color the
child is. I was a school principal, a school board member, a
State legislator, and now in Congress. I desperately care about
the welfare of all children. They are my passion. But I have
learned from my experiences that black boys in particular are
at risk. Years of economic and legal disenfranchisement, the
legacy of slavery and Jim Crow have led to serious social,
economic, and criminal justice disparities and fueled prejudice
against black boys and men. Trayvon Martin was a victim of this
legacy--this legacy that has led to fear, this legacy that has
led to the isolation of black males. This legacy has led to
racial profiling.
Trayvon was murdered by someone who thought he looked
suspicious. I established the Council on the Social Status of
Black Men and Boys in the State of Florida when I was in the
State Senate. I believe we need a council or commission like
this on the national and Federal level. Everyone should
understand that our entire society is impacted. A Federal
Commission on the Social Status of Black Men and Boys should be
established specifically to focus on alleviating and correcting
the underlying causes of higher rates of school expulsions and
suspensions, homicides, increases, poverty, violence, drug
abuse, as well as income, health, and educational disparities
among black males.
I have spent 20 years building a mentoring and dropout
prevention program for at-risk boys in Miami-Dade County public
schools. It is called the Five Thousand Role Models of
Excellence Project. Boys are taught not only how to be
productive members of society by emulating mentors who are role
models in the community; they are also taught how to respond to
racial profiling. It is a sad reality that we have to teach
boys these things just to survive in their own communities, but
we do.
We need to have a national conversation about racial
profiling now, not later. The time is now to stand up and
address these issues and fight injustice that exists throughout
our Nation. Enough is enough.
Thank you, Mr. Chairman.
[The prepared statement of Representative Frederica Wilson
appears as a submission for the record.]
Chairman Durbin. Thank you, Congresswoman.
Unless my colleagues have questions of this panel, I will
allow them to return to their Senate and House duties, and
thank you very, very much for being here today.
Chairman Durbin. Now we will turn to our second panel of
witnesses, and each of them will please take their place at the
witness table.
Before you take your seats, I will wait until everyone is
in place and ask you to please stand and be sworn. Do you
affirm the testimony you are about to give before the Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Chief Davis. I do.
Mr. Romero. I do.
Mr. Gale. I do.
Mr. Clegg. I do.
Professor Harris. I do.
Chairman Durbin. Thank you very much, and let the record
reflect that the witnesses all answered in the affirmative.
The first witness is Ronald Davis, chief of police for the
city of East Palo Alto, California, since 2005; before that, 19
years with the Oakland Police Department, where he rose to the
rank of captain. Chief Davis served on the Federal monitoring
teams overseeing police reform consent decrees between the U.S.
Department of Justice, Washington, DC, and Detroit. Among other
publications, he has co-authored the Justice Department
monograph, ``How to Correctly Collect and Analyze Racial
Profiling Data: Your Reputation Depends on It.'' He has a
bachelor's of science degree from Southern Illinois University
in Carbondale. He testified at both the previous Senate
hearings on racial profiling, and sorry it has been so long
since we have resumed this conversation, but it is an honor to
have you return a few years later to bring up to date.
At this point, Chief Davis, the floor is yours for 5
minutes.
STATEMENT OF RONALD L. DAVIS, CHIEF OF POLICE,
CITY OF EAST PALO ALTO, CALIFORNIA
Chief Davis. Thank you, Mr. Chairman.
Good morning, Mr. Chairman and distinguished Subcommittee
Members. I am Ronald Davis. I am currently the chief of police
for the city of East Palo Alto, California. I am humbled to
provide testimony at today's hearing. As was mentioned, I did
have the honor of testifying at the last Senate hearings on
racial profiling in 2001.
When asked to come before this Committee today, the first
thought that came to my mind was actually a question: What has
changed since my testimony in 2001 when President Bush then
stated, ``Racial profiling is wrong and we will end it in
America''?
My testimony today is based on three diverse perspectives:
first, as a racial profiling and police reform expert; second,
as a police executive with over 27 years' experience working in
two of the greatest and most diverse communities in the
Nation--Oakland and East Palo Alto; and, third, as a black man
and a father of a teenage boy of color.
First, from my perspective as an expert, I think it is fair
to say that law enforcement has made progress, albeit limited,
in addressing the issue of racial profiling and bias-based
policing. Over the past 10 years, the Department of Justice
Civil Rights Division, through its ``pattern and practice''
investigations, has worked with law enforcement agencies
nationwide to provide guidance on racial profiling policies and
promote industry best practices. Most recently, the COPS
Office, in partnership with the National Network for Safe
Communities, is working on issues of racial reconciliation in
communities to further strengthen these relationships and
reduce crime and violence in those communities. Today there are
very few police agencies in the United States that do not have
some type of policy prohibiting racial profiling and bias-based
policing.
This progress, however, is seriously undermined by two
focal points. First, there exists no national, standardized
definition for racial profiling that prohibits the use of race,
national origin, and religion, except when describing a person.
Consequently, many State and local policies define racial
profiling as using race as the ``sole'' basis for a stop or any
police action.
Unfortunately, this policy is misleading in that it
suggests using race as a factor for anything other than a
description is justified, which it is not. Simply put, Mr.
Chairman, race is a descriptor not a predictor.
To use race when describing someone who just committed a
crime is appropriate. However, when we deem a person to be
suspicious or attach criminality to a person because of the
color of their skin, the neighborhood they are walking in, or
the clothing they are wearing, we are attempting to predict
criminality. The problem with such predictions is that we are
seldom right in our results and always wrong in our approach.
The same holds true within the immigration context as well.
Because a person ``looks'' Latino or Mexican does not mean that
that person is undocumented, and it should not mean that they
are stopped or asked for their ``papers.'' Yet, according to
recent laws in Alabama and Arizona, the police are not just
encouraged to make these types of discriminatory stops; they
are actually expected to do so.
Most police chiefs will agree that engaging in these
activities actually makes our communities less safe. This is
one reason why I joined the Major Cities Police Chiefs
Association and 17 current and former chief law enforcement
executives in filing a brief challenging the Arizona law.
We need to pass the End Racial Profiling Act of 2011. This
legislation puts forth a standard definition for racial
profiling. It requires evidence-based training to curtail the
practice and provides support in developing scientific-based
data collection and analysis practices. We also need the U.S.
Department of Justice to revise its Guidance Regarding the Use
of Race by Federal Law Enforcement Agencies. This will close,
as mentioned in previous testimonies, loopholes that could
permit unlawful and ineffective profiling. It makes no sense to
exclude religion and national origin from the prohibition on
profiling or to treat terrorism or immigration enforcement
differently from other law enforcement efforts.
I also fear that without this legislation, we will continue
business as usual and only respond to issues when they surface
through high-profile tragedies such as the Oscar Grant case in
Oakland and the Trayvon Martin case in Florida.
The second factor that undermines our progress is the dire
need for us to reform the entire criminal justice system. The
last top-to-bottom review of our system was conducted in 1967
through the President's Commission on Law Enforcement and
Administration of Justice.
We must now examine the entire system through a new prism
that protects against inequities such as racial profiling,
disparate incarceration rates, and disparate sentencing laws. I
strongly encourage the passage of the National Criminal Justice
Commission Act of 2011.
Mr. Chairman, from my perspective as a police executive
with over 27 years of experience, I know firsthand just how
ineffective racial profiling is. As an example, in East Palo
Alto, my community, we are more than 95 percent people of
color--60 percent Latino, approximately 30 percent African
American, and a rapidly growing Asian and Pacific Islander
community. In 2005, the city experienced, unfortunately, the
second highest murder per capita rate in California and the
fifth highest in the United States.
In January 2006, with just 6 months serving as chief of
police, East Palo Alto police officer Richard May was shot and
killed in the line of duty by a parolee just 3 months out of
prison. With this crime rate and this violence against a police
officer, my community had two distinct choices: we could either
declare war on parolees, we could engage in enforcement
activities that would further the disparate incarceration rate
of young men of color, or we could do something different. We
chose to use problem-solving, we chose to strengthen our
relationships, we chose not to engage in racial profiling. We
started a parole reentry program, the first in California, in
which we actually were contracted by the Department of
Corrections to provide reentry services. Police officers now
are part of treatment, and we provide cognitive life skills, we
provide drug awareness and treatment programs, and together we
were able to reduce the recidivism rate from over 60 percent to
under 20 percent. After 5 years, the murder rate in 2011 was 47
percent lower than it was in 2005. Our incarceration rates have
dropped, and I am very confident in saying that we have better
police and community relations.
I think for me and my community, we recognize that racial
profiling, the focus on people of color, especially young men,
is more likely to occur when law enforcement uses race to start
guessing. I am here to really reinforce that is a very
ineffective policing practice. It is sloppy. It is counting on
guess work. I think the notion that we as a community or we as
a Nation must use racial profiling to make ourselves secure or
to sacrifice civil liberties is not only false, it reeks of
hypocrisy.
If we were truly worried about national security in the
sense of compromising civil liberties, then it would make sense
that we would also ask--or those who are engaging in racial
profiling would also ask for the prohibition of firearms. We
have lost over 100,000 Americans to gun violence since 9/11.
That is more than we have lost in terrorism and the wars in
Afghanistan and Iraq combined. Yet there is not this equal call
for gun laws. And I am not suggesting that there should be. I
am just offering the idea of compromising civil rights for
national security does not work.
What is equally troubling with the idea of using race,
national origin, or religion in the national security context
is that it suggests the most powerful Nation in the world, a
Nation that is equipped with law enforcement and national
security experts that are second to none, must rely on bias and
guess work to make ourselves secure versus human intelligence,
technology, experience, and the cooperation of the American
people. I want to strongly emphasize this point, Senator: There
is no reason to profile on the basis of race, religion,
national origin, or ethnicity.
Last, and importantly, my last perspective is as a black
man in America. I am still subject to increased scrutiny from
the community, from my own profession, and from my country
because of the color of my skin.
As I mentioned earlier, I am a father of three, but I have
a 14-year-old boy named Glenn, and even though I am a police
chief with over 27 years' experience, I know that when I teach
my son Glenn how to drive, I must also teach him what to do
when stopped by the police--a mandatory course, by the way, for
young men of color in this country.
As I end my testimony today, I want to thank you, Mr.
Chairman, and the rest of the Senators, for your leadership.
And as much as I am honored to be here today, and as much as I
was honored to be here 10 years ago or 12 years ago, I truly
hope that there is no need for me to come back in another 10
years.
Thank you.
[The prepared statement of Chief Ronald L. Davis appears as
a submission for the record.]
Chairman Durbin. Thank you, Chief Davis.
Since September 7, 2001, Anthony Romero has been executive
director of the American Civil Liberties Union, the Nation's
oldest and largest civil liberties organization, with more than
500,000 members. He is the first Latino and openly gay man to
serve in that position. He co-authored, ``In Defense of Our
America: The Fight for Civil Liberties in the Age of Terror.''
He graduated from Stanford University Law School and Princeton
University's Woodrow Wilson School of Policy and International
Affairs.
Mr. Romero, please proceed.
STATEMENT OF ANTHONY ROMERO, EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION, NEW YORK, NEW YORK
Mr. Romero. Good morning, Senator Durbin and Ranking Member
Graham. Thank you for having me this morning. Senator Franken,
Senator Blumenthal. I am delighted to testify before you today.
I am the national director of the American Civil Liberties
Union. We are a nonpartisan organization with over half a
million members, hundreds of thousands of additional activists
and supporters, and 53 State offices nationwide dedicated to
the principles of equality and justice set forth in the U.S.
Constitution and in our laws protecting individual rights.
For decades, the ACLU has been at the forefront of the
fight against all forms of racial profiling. Racial profiling
is policing based on crass stereotypes instead of facts,
evidence, and good police work. Racial profiling fuels fear and
mistrust between law enforcement and the very communities that
they are supposed to protect. Racial profiling is not only
ineffective, it is also unconstitutional and violates basic
norms of human rights both at home and abroad.
My written testimony lays out how race, religion, and
national origin are used as proxies for suspicion in three key
areas of national security, of routine law enforcement, and
immigration.
In the context of national security, recently released FBI
documents demonstrate how the FBI targets innocent Americans
based on race, ethnicity, religion, national origin, and First
Amendment-protected political activities. Such
counterproductive FBI practices waste law enforcement
resources, damage essential relationships with those
communities, and encourage racial profiling at the State and
local level.
In my native New York, the New York Police Department has
targeted Muslim New Yorkers for intrusive surveillance without
any suspicion of criminal activity. According to a series of
Associated Press articles, the New York Police Department
dispatched undercover police officers into Muslim communities
to monitor daily life in bookstores, cafes, night clubs, and
even infiltrated Muslim student organizations in colleges and
universities, such as Columbia and Yale universities. When we
tolerate this type of racial profiling in the guise of
promoting national security, we jeopardize public safety and
undermine the basic ideals set forth in our Constitution.
In the context of routine law enforcement, policing based
on stereotypes remains an entrenched practice in routine law
enforcement across the country. The tragic story of Trayvon
Martin has garnered national attention and raised important
questions about the role of race in the criminal justice
system. And while we yet do not know how this heart-breaking
story will end, we do know that stereotypes played a role in
this tragedy, and yet they have no place in law enforcement.
Racial profiling undermines the trust and mutual respect
between police and the communities they are there to protect,
which is critical to keeping communities safe. Additionally,
profiling deepens racial divisions in America and conveys a
larger message that some citizens do not deserve equal
protection under the law.
In the context of immigration, racial profiling is
exploding. State intrusion into Federal immigration authority
has created a legal regimen in which people are stopped based
on their race and ethnicity for inquiry into their immigration
status. The Department of Justice needs to continue to expand
its response to these State laws using robust civil rights
protections. Additionally, Congress must defund the Department
of Homeland Security 287(g) and Secure Communities programs
which promote racial profiling by turning State and local law
enforcement officials into immigration agents. When police
officers not trained in immigration law are asked to enforce
the Nation's immigration laws, they routinely resort to racial
stereotypes about who looks or sounds foreign. But you cannot
tell by looking or listening to someone about whether or not
they are in the U.S. lawfully.
In order to achieve comprehensive reform, Congress needs to
provide law enforcement with the tools needed to engage in
effective policing. We need to pass the End Racial Profiling
Act, which would prohibit racial profiling once and for all.
And we should urge the administration to strengthen the
Department of Justice guidance using the use of race by Federal
law enforcement agencies to address profiling by religion and
national origin and to close loopholes for the border and
national security.
In America in 2012 and beyond, policing based on
stereotypes must not be a part of our national landscape. Law
enforcement officers must base their decisions on facts and
evidence; otherwise, Americans' rights and liberties are
unnecessarily discarded and individuals are left to deal with
the lifelong circumstances of such intrusion.
On behalf of the ACLU, I wish to thank each of you for your
leadership on this critical issue. I also would like to thank
you, Chairman Durbin, in particular for your willingness to
partner with our Illinois office to address the issue of
profiling. I look forward to working with you in the years
ahead.
[The prepared statement of Anthony Romero appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Romero.
Frank Gale is the national second vice president and
Colorado State president of the Fraternal Order of Police. He
served for 23 years in the Denver County Sheriff's Department
where he had responsibility for the courts and jails. Captain
Gale is currently the commander of the Training Academy and the
Community Relations Unit and the public information officer. He
has received numerous awards and decorations from the Fraternal
Order of Police and the Denver Sheriff's Department.
Captain Gale, it is an honor to have you here today, and
please proceed.
STATEMENT OF FRANK GALE, NATIONAL SECOND VICE
PRESIDENT, GRAND LODGE, FRATERNAL ORDER OF POLICE, DENVER,
COLORADO
Mr. Gale. Thank you. Good morning, Mr. Chairman and
distinguished Members of the Senate Subcommittee on the
Constitution, Civil Rights and Human Rights. My name is Frank
Gale. I am a 23-year veteran of the Denver County Sheriff's
Department and currently hold the rank of captain. I am the
national second vice president of the Fraternal Order of
Police, which is the largest law enforcement labor organization
in the country, representing more than 330,000 rank-and-file
law enforcement officers in every region of the country.
I am here this morning to discuss our strong opposition to
S. 1670, the End Racial Profiling Act. I want to begin by
saying that it is clear that racism is morally and ethically
wrong, and in law enforcement is not only wrong but serves no
valid purpose. It is wrong to think a person a criminal because
of the color of their skin, but it is equally wrong to think
that a person is a racist because they wear a uniform and a
badge. This bill provides a solution to a problem that does not
exist unless one believes that the problem to be solved is that
our Nation's law enforcement officers are patently racist and
that their universal training is based in practicing racism.
This notion makes no sense, especially to anyone who truly
understands the challenges we face protecting the communities
we serve.
Criminals comes in all shapes, colors, and sizes, and to be
effective as a law enforcement officer, it is necessary to be
colorblind as you make determinations about criminal conduct or
suspicious activity. There is the 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 to refute it entirely. We can and must restore
the bonds of trust between law enforcement and the minority
community. To do so would require substantial effort to find
real solutions. Restoring this trust is critically important
because minority citizens often suffer more as victims of
crime, especially violent crime.
I do not believe that S. 1670 will help to repair the bonds
of trust and mutual respect between law enforcement and
minority communities. In fact, I believe it will make it more
difficult because it lends the appearance that all cops are
racist and that we are engaged in a tactic which has no other
purpose than to violate the rights of citizens. That notion or
belief is inhibitive of building trust and respect and can
result in a base belief by the community that law enforcement
officers should not be trusted or respected.
This bill proposes to prohibit racial profiling, which it
defines very broadly and is not a legitimate police practice
employed by any law enforcement agency in the United States
that I know of. In Whren v. United States, the Supreme Court
made it very clear that the Constitution prohibits selective
enforcement of the law based on considerations such as race.
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 the citizen's race without more, then a
violation of the Equal Protection Clause has occurred.
The United States Constitution itself prohibits racial
profiling, and yet here we have a bill that proposes to
prohibit it. The very premise of the bill seems at odds with
common sense in current law. The bill does not prohibit racial
profiling, as the definition of racial profiling in the bill is
far too broad. And, thus, it ends up prohibiting officers from
the exercise of legitimate routine investigatory action aimed
at determining involvement in a crime or criminal activity. The
bill purports to allow exceptions to these prohibitions when
there is a race description provided by a trustworthy
eyewitness or other evidence of a specific suspect's race or
ethnicity, but in real life this is not practical.
In the practice of routine investigatory action, law
enforcement officers receive and develop information through a
wide range of activities and methods that are designed to
identify suspects, prevent crime, or lead to an arrest. This
bill would ban many of these types of method; therefore, a
whole range of legitimate law enforcement methods would be
prohibited beyond the already unconstitutional, purely race-
based activities.
The legislation also threatens to penalize local and State
law enforcement agencies by withholding Federal law enforcement
funding unless these agencies comply with the requirements of
the bill to provide all officers training on racial profiling
issues, collect racial and other sociological data in
accordance with Federal regulation, and establish an
administrative complaint procedure or independent audit program
to ensure an appropriate response to allegations of racial
profiling.
The FOP has testified before you about the dire and
dangerous consequences of budget cutbacks for law enforcement
in the past. How can we fight the battle if we also propose to
deny these funds to agencies that need them because they cannot
afford new training or new personnel to document allegations of
racial profiling issues? How can we achieve a colorblind
society if the policies of the Federal law require the detailed
recording of race when it comes to something as common as a
traffic stop? 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''?
At a time when many citizens and lawmakers are concerned
with protecting their personal information, be it concerns
about the REAL ID Act, voter identification laws, or cyber
crime, it seems at variance with common sense and sound public
policy to ask yet another representative of the Government--in
this case, a law enforcement officer--to collect racial or
other personal data and turn that data over to the Federal
Government for analysis. Why would something as simple and
routine as a traffic stop require such an extraordinary
imposition on a driver?
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 have a problem in that they have lost
the trust and respect and cooperation of the minority
community. This is tragic because, as we have already
discussed, 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.
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.
[The prepared statement of Frank Gale appears as a
submission for the record.]
Chairman Durbin. Thank you very much, Office Gale, for
being here.
Roger Clegg is the next witness, president and general
counsel of the Center for Equal Opportunity. He has held a
number of senior positions in the Justice Department during the
Reagan and George H.W. Bush administrations, including Deputy
Assistant Attorney General in the Civil Rights Division and
Deputy Assistant Attorney General in the Environment and
Natural Resources Division, Acting Assistant Attorney General
in the Office of Legal Policy. He is a graduate of Yale
University Law School.
Thank you for being here, Mr. Clegg, and please proceed. If
you would turn your microphone on, it is in that box in front
of you there.
STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER
FOR EQUAL OPPORTUNITY, FALLS CHURCH, VIRGINIA
Mr. Clegg. Thank you very much, Senator Durbin, for
inviting me here today. I am delighted to be here. Let me just
summarize briefly my written statement.
The first point I make is that care has to be taken in
defining the term ``racial profiling.'' And, in particular, I
think that it is important to bear in mind that racial
profiling is disparate treatment on the basis of race. Good
police activities that happen to have a disparate impact on the
basis of race are not racial profiling.
The second point I make is that the amount of racial
profiling that occurs is frequently exaggerated and that care
needs to be taken in analyzing the data in this area.
All that said, racial profiling, as I define it, is a bad
policy, and I oppose it for the reasons that many of my co-
panelists here are giving.
There is one possible exception that I would make, and that
is in the antiterrorism context. In brief, I think that it is
quite plausible to me that in the war on terror, where we are
fighting an enemy that has a particular geopolitical and
perverted religious agenda, it may make sense in some
circumstances to look at organizations that have particular
religious and geopolitical ties. I am not happy about doing
that. I think it should be done as little as possible. But the
stakes are so high that I am not willing to rule it out
altogether.
The last point I would make is that there are problems with
trying to legislate in this area in general, and I think that
the End Racial Profiling Act in particular is very problematic.
I do not think that this is an easy area for Congress to
legislate a one-size-fits-all policy that is going to apply to
all law enforcement agencies at all levels of Government at all
times in all kinds of investigations. And I think it is also a
bad idea to encourage heavy judicial involvement in this area.
And these are things that the End Racial Profiling Act does.
Let me also say that I think that Chief Gale does a very
good job of identifying some additional costs in the End Racial
Profiling Act: The fact that it is insulting, that data
collection is time-consuming, and that inevitably we are going
to either have to guess inaccurately about people's racial and
ethnic background or else train the police on how to identify
people racially, which is a pretty creepy enterprise.
With respect to my other panelists' testimony, I will just
say briefly that in the terrorism and border security context,
as I read some of this testimony, they would equate racial
profiling with taking a particular look at visitors from
particular countries, at considering immigration and
citizenship status, and at considering language. I do not
consider any of those things to be racial profiling.
Let me make one last point. I think that this is an
important point to make whenever we are talking about racial
disparities. As I said, Mr. Chairman, I am opposed to
profiling, particularly to profiling in the traditional law
enforcement context where frequently it is African Americans
who are the victims of that profiling. I am against that.
Nonetheless, I think we have to recognize that it is going
to be tempting for the police and individuals to profile so
long as a disproportionate amount of street crime is committed
by African Americans. And there will be a disproportionate
amount of street crime committed by African Americans for so
long as more than seven out of ten African Americans are being
born out of wedlock. I know that this is not a popular thing to
say, but I think whenever we are discussing racial disparities
in the United States, that is the elephant in the room, and it
has to be addressed.
So, ultimately, people like me and everyone else, I think,
in this audience who do not like racial profiling are going to
have to face up to this problem. Thank you.
Chairman Durbin. I would ask those in attendance here to
please maintain order.
Mr. Clegg. Thank you, Mr. Chairman, and I think I am at the
end of my 5 minutes, anyway.
[The prepared statement of Roger Clegg appears as a
submission for the record.]
Chairman Durbin. Thank you, Mr. Clegg.
David Harris is a distinguished faculty scholar and
associate dean for research at the University of Pittsburgh Law
School. He is one of the Nation's leading scholars on racial
profiling and author of the book in 2000, ``Profiles in
Injustice: Why Racial Profiling Cannot Work,'' and in 2005,
``Good Cops: The Case for Preventive Policing.'' Like
Congressman Conyers and Chief Davis, Professor Harris appeared
at both of the previous Senate hearings on racial profiling, so
welcome back.
STATEMENT OF DAVID A. HARRIS, PROFESSOR OF LAW AND ASSOCIATE
DEAN FOR RESEARCH, UNIVERSITY OF
PITTSBURGH SCHOOL OF LAW, PITTSBURGH, PENNSYLVANIA
Professor Harris. Thank you very much, Senator Durbin,
Members of the Subcommittee. I am grateful for the chance to
talk to you today.
Senator Durbin's statement opened by recalling for us
President Bush's promise that racial profiling ``is wrong and
we will end it in America.'' Sad to say that that promise
remains as yet unfulfilled. Instead, we have a continuation of
profiling as it existed then with a new overlapping second wave
of profiling in the wake of September 11th, as other witnesses
have described, directed mostly at Arab Americans and Muslims.
And now we have a third overlapping wave of profiling, this one
against undocumented immigrants. But the context and the
mission of whatever these law enforcement actions are does not
change the fundamentals. The fundamentals are these: Racial
profiling does not work to create greater safety or security.
Instead, racial profiling, ethnic profiling, and religious
profiling all make our police and security personnel less
effective and less accurate in doing their very difficult jobs.
I would define racial profiling as the use of racial,
ethnic, religious, national origin, or other physical
characteristics of appearance as one factor, not the sole
factor but one factor, among others, used to decide who to
stop, question, frisk, search, or take other routine law
enforcement actions. This is very close, if you look at it, to
the definition in the profiling guidance of the Justice
Department, and I would note that it does not include actions
based upon description--description of a known suspect, a
person who has been seen by a witness. That is not profiling.
That is good police work.
All of profiling falls on the same set of data--data from
across the country, different law enforcement agencies,
different missions--and it is all about hit rates. When we talk
about effectiveness, what we are asking is: What is the rate at
which police officers and security officers succeed or hit when
they use race, ethnic appearance, religious appearance, as
opposed to when they do not? And the evidence, the data on this
question is unequivocal. It comes from all over the country.
When police use race or ethnic appearance or religious
appearance this way, they do not become more accurate. In fact,
they do not even just stay as accurate. They become less
accurate than police officers and security agents who do not
use these practices. In other words, racial profiling gets us
fewer bad guys.
Why is this? Because a lot of people find this
counterintuitive. There are two big reasons.
Number one, profiling is the opposite of what we need to do
in order to address as yet unknown crimes by as yet unknown
suspects. That is addressed most effectively through
observation, careful observation of behavior. And when you
introduce race even as just one factor into the mix, what
happens is the observation of behavior becomes less accurate,
measurably so, and police officers' efforts are damaged and
wasted.
Second is that using profiling affects our ability to
gather crucial intelligence and information from communities on
the ground, and this is true whatever the context is in which
profiling is used. Particularly in the national security
context, this is absolutely critical.
If we are in danger, if there is a threat from
international terrorists, and if, as some say, those
international terrorists may be hiding in communities of Arab
Americans and Muslims, the people we need right now as our
partners, like we have never needed other partners, are people
in those Arab American and Muslim communities. And I want to
say that those communities have been strong, effective,
continuously helpful partners to law enforcement in case after
case across the country. These communities have helped. But if
we put the target of profiling on these whole communities, we
will damage our ability to collect intelligence from them
because fear will replace trust.
In response to some of the comments made by my fellow
panelists, a bill like S. 1670, which deserves support, is not
insulting to law enforcement. It is all about accountability,
and everybody who is in law enforcement or any other pursuit
needs accountability, just like I do as a professor, just like
everybody else does. Racial identification is not an issue. You
will not have police officers asking people what their race or
ethnic group is. In fact, that is not what we would want at all
because it is all about the perception of the officer. That is
all that would have to be recorded.
And black street crime, respectfully I have to disagree, is
not the issue. The issue is how we deploy our law enforcement
officers in ways that are effective, fair, and carry out the
most important ideals of our society. So for those reasons, I
would support any efforts to pass S. 1670, the End Racial
Profiling Act, and to revise the Department of Justice's
profiling guidance.
I thank you very much for the opportunity to talk to you,
and I look forward to the Committee's questions. Thank you.
[The prepared statement of Prof. David A. Harris appears as
a submission for the record.]
Chairman Durbin. Thank you very much, Professor Harris.
Chief Davis, you have spent your lifetime in law
enforcement, and you have heard the testimony of Officer Gale
that suggested in very strong and pointed language that raising
this question of racial profiling really, he says, unless you
believe police are racist, he suggests this is unnecessary.
So what is your answer to that? As I said at the outset,
you trust, we trust, these men in uniform--women as well--who
risk their lives every day for us. And the question he has
raised is if we cannot trust their judgment and assume that
they are going to violate the Constitution and the law, then we
are suspicious of them when we should be more trusting.
Chief Davis. Thank you, Mr. Chairman, for the question. I
completely disagree with my colleague. The idea that a police
officer or a police department should not be held accountable
is counter to the idea of democracy. If any group should be
held accountable, it must be the police. We have awesome powers
and responsibility, the power to take a life and the power to
take freedom. The idea that we could not collect data to ensure
that that power is used judiciously and prudently would be
counter to sound managerial principles.
We collect data every day. We collect data on crime. We
collect data for budget purposes. We collect data for our very
justification and existence. We use it to tell you that you
need to increase budgets to the State. We use crime to justify
why we deploy resources. The idea of using data means that you
are using intelligence, and intelligence-led policing prevents
the need to do guess work or bias-based policing.
And so while I do appreciate the notion that we should
respect law enforcement, as a law enforcement officer I think
there is no more noble profession. But the idea that I am
exempt from the Constitution or exempt from accountability is
counter to why I got into the job. And I do not think it is
insulting. I think what is insulting is to allow police
officers to come under the perception, under the threats of
accusations of racial profiling and not be in a position to
counter it, not be in a position to make sure that your own
policies and practices do not make them unintentionally engage
in this practice. Laws are designed to set standards, to hold
us accountable, and to really send a clear message. And I think
that is what we're doing.
Chairman Durbin. Before I turn to Officer Gale, I would
like to also note that this celebrated case, notorious case
involving Trayvon Martin involved a person being accused who
was not a law enforcement official per se. He was an individual
citizen as part of a Neighborhood Watch. Forty-nine States now,
my own State being the only exception, have a concealed-carry
law which allows individuals under some circumstances to
legally carry a firearm. In this case, I do not know if Mr.
Zimmerman complied with Florida law. That will come out, I am
sure, in terms of what it took to have a concealed weapon.
But it certainly raises a question that was not before us
as much 10 years ago. We are not just talking about
professionalizing law enforcement and holding them accountable.
We are talking about a new group of Americans who are being
empowered to carry deadly weapons and to make decisions on the
spot about the protection of their homes and communities, which
I think makes this a far more complex challenge than it was 10
years ago.
I would like your response.
Chief Davis. Yes, sir, I agree. The issue for California,
we have the issue of open-carry, the carrying of loaded
firearms, with very minimal requirements. So I think the idea
that people should be held accountable, including our
community, is very real.
The issue of racial profiling, why it is also important,
why we need the data, is in many cases--and maybe the Trayvon
Martin case may bring this out later--gets into also what role
law enforcement plays with its own community's bias. And so
when people call the police and say, ``There is a suspicious
person walking in my neighborhood,'' what makes that person
suspicious? And the police must ask those questions. And the
idea that we simply respond and stop without inquiring why the
person is suspicious--is it their behavior? Is it the fact that
they were basically engaged in criminal activity? Or is it
because they are wearing a hoodie and because they are black?
And at some point, the law enforcement must stand firm.
Now, this is where we need the justification with the law
to stand firm and even tell community members, ``No, I am not
going to stop this person because he or she has done nothing.''
So we do have to look at the idea that law enforcement not
enforces the law, they also set in many ways the moral
authority of its community on how to interact with each other.
Chairman Durbin. Officer Gale, your statement was very
strong, but the conclusion of it raised a question. And I do
not have it in front of me, but as I recall--and tell me if I
am stating this correctly--you said that many members of the
law enforcement community were not trusted in the minority
communities. Can you explain that?
Mr. Gale. Well, I think it is----
Chairman Durbin. You need to turn the microphone on,
please.
Mr. Gale. I apologize. I think it is pretty clear from what
we have seen in media reports, especially recently. But, you
know, over the course of several years, there is work to be
done by law enforcement in the minority community to rebuild
trust. And I say that openly. I think the FOP acknowledges that
and, in fact, we are engaged in activities in which we are
attempting to help law enforcement officers and agencies do
just that through community work. So I think that is an
important piece.
I think the professor talked about the fact that a lot of
times in minority communities you have people in those
communities that are a valuable resource to law enforcement. I
agree with that, and the aspect of law enforcement and the
professional law enforcement, it is necessary to have people in
communities where crime is occurring assist you with the
enforcement activities. And so I think the problem has become
that we seem to want to blame the enforcers for everything that
goes wrong. And the problem with that is that the enforcers
show up on the scene to deal with a situation with the
information that they have available to them at the time. And
our job, when we show up, is to stabilize the situation.
Chairman Durbin. But you do not quarrel with--I hope you do
not quarrel with Chief Davis' premise that the law enforcement
community has extraordinary power in the moment--the power to
arrest, the power to detain, the power to embarrass. And
holding them accountable to use that power in a responsible,
legal, constitutional way, you do not quarrel with that
premise, do you?
Mr. Gale. I do not think the FOP quarrels with the fact
that law enforcement officers have that power, nor do we
quarrel with the fact that law enforcement officers should be
held accountable. In fact, we are accountable. I think my
testimony illustrated situations where the court had ruled that
officers had to be accountable in issues of race, and we accept
that and embrace it because we believe it is proper, we believe
it is appropriate.
Chairman Durbin. Mr. Clegg, you said a number of things
which caught my attention, and you said that you thought the
war on terror justified some measure of profiling.
Mr. Clegg. Well----
Chairman Durbin. Let me come to a question, and then you
can certainly explain your position. And I wrote notes as
quickly as I could. ``We need to look at organizations with
geopolitical and political ties,'' I think is something that
you said in the course of that.
You have heard testimony here from Congressman Ellison and
others about what is happening to Muslim Americans across the
board, and many of them are not affiliated with any specific
organization. They are affiliated with a faith, and it appears
that that has become a premise for surveillance and
investigation.
I worry, as an amateur student of history, how you could
distinguish what you just from what happened to Japanese
Americans in World War II, where 120,000 were rounded up with
no suspicion of any danger to the United States and their
property taken from them, detained and confined because they
happened to be part of an ethnic group which had just attacked
the United States--the Japanese, I should say, attacked the
United States and, therefore, they were branded as possibly
being a danger in the Second World War because of some
connection they might have with a geopolitical or political
group.
How would you make that distinction? Or do you happen to
think Japanese internment camps were justifiable?
Mr. Clegg. No, I do not, and when I say that in some
limited circumstances some consideration of individuals' or
organizations' geography and religion can be justified in the
war on terror, I am not saying that that means that any
consideration under any circumstances of ethnic profiling and
religious profiling is okay. All I am saying is that I am
unwilling to say that it can never be used. And I give examples
in my testimony.
For instance, suppose that on 9/11 the FBI had gotten
reliable information that an individual on one of the grounded
airplanes, one of the grounded jetliners, had a backup plan and
that he was going to fly a private plane filled with explosives
into a skyscraper. Would----
Chairman Durbin. But there is a clear distinction. There is
a clear distinction, and let us make it for the record: a
predictor and a descriptor.
Mr. Clegg. No, no, no----
Chairman Durbin. When you talk about the class of people
guilty for 9/11 and say, ``Why wouldn't we go after that class
of people in training to fly,'' and so forth and so on, that is
a descriptor that law enforcement can use. But when you
conclude that because they were all Muslim we should take a
look at all Muslims in America----
Mr. Clegg. I did not say that.
Chairman Durbin [continuing]. You have crossed the line.
Mr. Clegg. Well, I did not say that. And I think that the
line that you are drawing between predictor and descriptor is
inevitably a gray one, and this is one reason why I think that
legislation in this area is a bad idea.
Isn't it predictive when the FBI in my hypothetical says,
you know, the individual who is going to fly this plane into a
skyscraper is not somebody identified--it has not already been
done. We are trying to predict who it is going to be, and we
are going to look at the passenger lists on the grounded
airplanes, and we have only limited resources and limited
time--we are working against the clock here--and we are going
to start by looking at individuals with Arabic names.
Now, that is racial profiling, according to your bill, but
I think it would be eminently reasonable.
Chairman Durbin. I certainly disagree, and that is why I
am----
Mr. Clegg. You do not think that that would be reasonable?
Chairman Durbin. No, I do not. I really think that when you
start going that far afield, why do you stop with Arabic names?
Why wouldn't you include all of Muslim religion then? I mean,
that just strikes me as the very core of the reason we are
gathering today, that if we are going to say to people across
America, ``You have certain rights and freedoms because you
live in America and we have certain values,'' it does create
perhaps more of a challenge to law enforcement. A police state
may be much more efficient in many respects. But it is not
America.
Mr. Clegg. Well, listen, in my testimony, I and my whole
organization's whole focus is on the principle of ``E pluribus
unum.'' I take that very seriously, Mr. Chairman. But what I am
saying is that there are going to be some circumstances where I
think it would be very unwise for Congress to say that law
enforcement agencies cannot give some limited consideration to
an individual's or an organization's geopolitical and religious
background.
Chairman Durbin. I would like to defer now to Senator
Graham, who has patiently waited for his opportunity.
Senator Graham. Thank you all. Well, I guess what we are
trying to highlight is how complicated this issue is.
Mr. Gale, do you think you have ever been racially
profiled?
Mr. Gale. Probably.
Senator Graham. I cannot say I understand, because I do
not. I have never been in that situation. But the fact that you
are a law enforcement officer and you probably some time in
your life have been viewed with suspicion by police makes your
testimony pretty persuasive to me in the sense that you are now
sitting in the role of a law enforcement official trying to
protect a community. And the Zimmerman case is a private
individual, not a law enforcement organization. And I just
really--I think I understand the problem. I just do not know
where the line between good law enforcement and racial
profiling ends and begins, because let me tell you one thing
about Congress. We will be the first one to jump on you when
you are wrong. When you get a phone call that somebody looks
suspicious in a neighborhood and you ask a bunch of questions,
well, that does not seem to justify us going in, and that
persons winds up killing somebody or robbing or raping
somebody, we will be the first ones to blame you. So you are in
an untenable situation.
And when it comes to the war on terror, Mr. Clegg, I could
not agree with you more. The reality of the fact is that I wish
we had done more with Major Hasan and not less. There are some
websites out there that I am glad we are monitoring. There are
some groups within America that are saying some pretty radical
things, and I hope we follow the leaders of these groups to
find out what they are up to, because homegrown terrorism is on
the rise. How do you fight it without fighting a religion? How
do you fight homegrown terrorism without fighting people who
are very loyal to America who belong to a particular faith? I
do not know, but I know this: that if the law enforcement
community in this country fails to find out about the Major
Hasans, we are the first one to be on your case. Why didn't you
follow this website? He said these things in these meetings,
and why didn't the supervisor tell the wing commander you have
got somebody who is really out of sorts here? And as a Air
Force officer, when do you go to your wing commander and say
this person said something that makes me feel uncomfortable and
you do so at your own peril?
So I just do not know what the answer is. I know what the
problem is. And I think in the last decade we have made some
progress, Chief Davis, and maybe having legislation that makes
us focus on this problem more might make some sense, quite
frankly. Maybe we would look at redefining it, but just
collecting information to show exactly what happens day in and
day out in America so we can act logically on it.
I know you want to say something, Mr. Clegg, but when it
comes to fighting the war on terror, the fact of the matter is
that Great Britain and France are going through this very
similar situation right now where they have groups within the
country that are espousing some pretty radical ideas, and they
just expelled someone, I think, from Great Britain just today
or yesterday, an imam who was saying some pretty radical
things.
So I do not know when national security starts and
individual liberties begin. What is your thought?
Mr. Clegg. Well, I want to endorse what some of my co-
panelists have said, that it is very important in the war on
terror that we have the cooperation of the overwhelming
majority of individual Americans, Arab Americans and Muslim
Americans, who----
Senator Graham. Don't you think one of the great strengths
of our country is that even though homegrown terrorism is on
the rise, generally speaking American Muslims have assimilated
in our society and our culture; thousands serve in the
military; and that we are actually the example to the world of
how you assimilate?
Mr. Clegg. That is right, and I think that stereotyping is
very dangerous in this area. You know, most Arab Americans are
not Muslims, for instance. I believe they are Christian. You
cannot just look at somebody's name and conclude things about
them. And as my co-panelists said, it is very important to have
the cooperation and the trust of Arab American communities. So
I do not want to give the impression that I think that it
should be open season on anyone on account of their ethnicity
or their religion. I am simply saying----
Senator Graham. Do you agree that----
Mr. Clegg [continuing]. That there are going to be
circumstances where----
Senator Graham. Well, what we should be looking for is
actions by individuals within groups, statements made that send
signals that this is not where, you know, practicing religion
should be taking one, it is the activity on the Internet.
Mr. Clegg. Well, as Professor Harris has said, it is----
Senator Graham. That is what you were talking about. That
is what I want us to----
Mr. Clegg [continuing]. We are looking at----
Senator Graham [continuing]. And how we do that I think is
very complicated because when you monitor these websites, maybe
you capture some innocent conversation. So having judicial
oversight I think is important. But I guess that is what I am
looking for, is sort of objective indicators of, you know, this
is getting out of bounds here.
Professor Harris. Senator Graham, you are absolutely right.
It is about behavior. That is the key to everything. And making
statements, whether out loud or on the Internet, that is
action, that is behavior.
Senator Graham. And here is the problem we have. If you are
an Air Force member and you have an American Muslim in the
group and they say something that alarms you, you have to
think, ``Well, if I say something, am I going to get myself in
trouble?''
Mr. Romero. But, Senator, if I may interject--and it is
nice to see you again, Senator. Thank you for yielding to me. I
think part of the challenge we have in a country that is
dedicated to free speech is how you draw that line well in a
way that does not quell speech we want to protect. I know that
perhaps my organization and you have different points of view
on abortion, for instance, and yet I think you and I would
completely coincide--from the moments I have shared with you, I
know you and I would completely coincide that anyone who dares
to blow up an abortion clinic is a criminal.
Senator Graham. That is not speech.
Mr. Romero. And yet then would you feel comfortable
surveilling the antiabortion websites for individuals who
perhaps would be willing to blow up an abortion clinic just
because they may share the points of view of the radicals who
would blow up a clinic? I know you would not feel comfortable,
if I could put words in your mouth.
Senator Graham. I know exactly what you are saying.
Mr. Romero. And so the context is not that different in the
context of speech that perhaps we find odious, perhaps we find
difficult, but that is what America is about. Democracy is a
great many things, but it should never be quiet. But we all
agree that it is not the America we know and love, sir.
Senator Graham. I guess here is maybe where legislation can
help, and my time is up. You know, having thoughts the
Government or expressing yourself in an aggressive way, you can
be radically pro-choice, radically against abortion; you can
feel the way you would like to feel; you can speak your mind.
But there comes a point in time when the rest of us have to
defend ourselves and our way of life. And what I hope we will
do in this discussion is not ignore the threats that do exist.
There is a lurking, looming threat against this country and
against our way of life, and I hope we will not get so
sensitive to this dilemma that we will basically unilaterally
disarm ourselves.
And when it comes to basically, you know, the immigration
issue, if there was ever a reason to fix our immigration
system, this hearing highlights it. You have got millions of
people here who are undocumented, illegal, and I would just be
greatly offended if I were a corporal coming back from
Afghanistan who happened to have a Hispanic last name and got
stopped because somebody thinks I am here illegally. I could be
greatly offended, but the fact of the matter is that, you know,
there is a downside of illegal immigration in terms of crime,
and the way to solve that problem, it is clear to me, is
comprehensive immigration reform.
Thank you all. This has been a very good hearing, and we
will see if we can work with Senator Cardin to find something
maybe more bipartisan.
Chief Davis. Mr. Chairman, could I just answer one question
the Senator asked? You asked Captain Gale had he ever been
profiled, and I will take a shot at that. Unequivocally yes.
But I think it was telling not only have I been profiled, but
as a law enforcement officer, I have profiled. And I think that
is the part that we bring to the table, that in many cases it
may be implicit bias, it may be no malice intended; but at the
end of the day, the result is that you have a disparate effect
on people of color that you need most to help address some of
the issues that are at the table.
So I think for us not to acknowledge that it exists, to
acknowledge that implicit bias is a human behavior that no one
is exempt from, for us to require that we are trained in it,
that we hold ourselves accountable so that we do not have these
disparate outcomes is really what we are talking about. And it
is easy to focus on the small percentage. I agree with the
opening statement. Only a small percentage of our profession I
believe are racists. But if the issue was as simple as racism,
it would be an easy problem to fix. This is a much bigger
issue, and I think we have to tackle it at that level.
Senator Graham. Well said.
Chairman Durbin. Thank you, Senator Graham. And I am going
to take an extraordinary risk here and put this Committee in
the hands of Senator Franken.
[Laughter.]
Chairman Durbin. In all seriousness, we are in a roll call
vote, and Senator Graham and I have to vote. Senator Franken, I
am going to recognize you, and I will let you monitor your own
time used and watch Senator Blumenthal proceed, and then I will
return. Thank you.
Senator Franken [presiding]. You may regret this.
[Laughter.]
Senator Franken. I have the gavel now. In that case, I will
turn it over to Senator Blumenthal.
Senator Blumenthal. If I may, I have a question, Chief, to
followup on the remark that you made at the close of Senator
Graham's questions. Under what circumstances have you profiled?
And if you could talk a little bit more about what limiting
principles you think should apply to profiling when it is used
legitimately, if it can be used legitimately, in your view.
Chief Davis. Yes, the example that stands out for me when I
was a police officer in Oakland, and you would have an area
that we would identify as high crime, and this area was
actually--it was very accessible to the freeway, so we had
customers from out of town coming in to buy narcotics, and
quite often they were actually white, and so the presumption on
my part and many others is that any white person in that
neighborhood would then be buying narcotics.
The problem with that assessment, one, it attaches
criminality to the entire neighborhood so that the only way
that neighborhood could be judged is based on the actions of a
few, which means you are criminalizing everyone that lives
there; and, two, that also suggests that the only reason why a
white person would visit someone black is to buy drugs.
So besides being ineffective, besides being insulting to
the neighborhood, it was not very--it just did not work. So as
we got better and moved on, we learned how to watch behaviors.
So now someone leaning in a car, someone basically exchanging
money, somebody yelling signals that a drug buy was about to
take place or that the police officers are coming works a lot
better, doing proper investigations.
The circumstances in which I think profiling could work
would be probably under the category of criminal profiling when
you are looking at behavioral aspects of what a person is
doing. In other words, people when they are selling drugs, they
engage in certain behaviors, whether it is how they drive,
whether it is furtive movements in a car, something that would
be specific to their actions. I cannot think of any context in
which race is appropriate other than when you are describing
someone who has committed a crime. And, in fact, Senator, I
would say that what race ends up doing is being a huge
distractor. So now we have seen this time and time again. We
did Operation Pipeline in California where we targeted so-
called drug carriers, and we basically did not get what we were
looking for because we were so buy looking for black or brown
people driving on a freeway. And we were proven wrong time and
time again, and then we lose the support of our community.
Senator Blumenthal. And added to that problem is the
difficulty often of using eyewitness testimony where somebody
supposedly identifying a potential defendant in a lineup can be
just plain wrong because of race being a factor. Would you
agree to that?
Chief Davis. Yes, and, in fact, there is much work in
science now into looking at some of the dangers of basing
convictions and even arrests merely on lineups because they can
be inaccurate. And if I may, I guess one of the questions that
came up earlier was also about officers guessing on race. And
if I can say, it is really interesting because we are supposed
to assess race. And so the idea--I do not think we are
suggesting that race has no place. So if something comes out on
a radio that you are looking for a black male, six-foot tall,
225 pounds, and very handsome that did a robbery, then it would
make sense why you would stop me. I can understand that.
[Laughter.]
Senator Franken. Objection.
[Laughter.]
Chief Davis. But the officer has to make an assessment at
the time, so there is a time and place to, just not when you
are trying to predict criminal behavior.
Senator Blumenthal. Mr. Gale, if I may ask you to comment
on the general principle that race or other similar
characteristics alone, if used for identifying or profiling
individuals, can be either distracting or undermining to
credibility, and really should be used in combination--if
anything, in combination with other, if at all,
characteristics, mainly conduct, behavior, and so forth, what
would you think about that?
Mr. Gale. Conduct is what drives it all. You know, I am the
commander of the training academy in my department, and we are
training officers all the time. One of the things we talk about
is, you know, the stop-and-frisk Terry stop type of situations.
It is all driven by conduct. If you are going to properly teach
that, you teach that it is driven by the conduct of the person
and you are determining that their conduct indicates that they
are involved in criminal activity. Race has no place in that. I
think the distraction is that now you would have criminals who
are involved in criminal activity who will now use, you know,
the racial profiling as a distraction as they complain of being
arrested or stopped because of their criminal conduct. And I
think there is a presumption by some, and wrongly so, I
believe, that, you know, no criminals ever complain against
police officers and that no criminals ever, you know, do not
just acknowledge that they do crime. My experience in 23 years
is that it is very rare to roll up on someone engaged in
criminal conduct and have them say, ``Ah, you got me, copper. I
am guilty.'' They do not do that. They look for any way they
can to try to get out of that process.
Conduct is what drives all of it. The distraction is now
that if you pass a bill like this, you are going to now say
here is something you can use in addition. I think the courts
already addressed it. The courts have already told law
enforcement agencies very clearly, ``You cannot use race as the
basis for how you do this.'' So conduct is it.
The bulk of my testimony is really that I think we are
trying to fix something that does not need to be fixed because
you are trying to fix it with a law as opposed to just saying,
hey, there is a problem, and the problem is bad police work.
Senator Blumenthal. And I am sympathetic as one who has
been involved in law enforcement for actually more than 23
years, combining both Federal and State, as U.S. Attorney and
then as Attorney General of my State in Connecticut, and I
would be very loath to create what you have charitably called
``distractions,'' ``defenses,'' ``impediments'' to effective
law enforcement. But I think that one of the roles of
legislation is also to provide guidance, raise awareness, and
perhaps provide direction to police or their departments who
may not be as aware as you are or even other witnesses here.
Mr. Romero.
Mr. Romero. Yes, thank you, Senator Blumenthal. Officer
Gale, I guess I must take some time to visit your fair city of
Denver because it does not look like any of the major cities
that I visited in my 11 years' tenure as director of the ACLU.
And with all due respect, you will forgive me for having to
point out that your very optimistic assertion that all is well
is just not borne out by the data that we already have. Let me
give you data that I know quite well in New York City, the
country's large police department.
From 2002 to 2011, there were more than 4.3 million street
stops--4.3 million. Eighty-eight percent of those--that is
nearly 3.8 million--were of innocent New Yorkers. That means
they were neither arrested for a summons or--neither issued a
summons or arrested.
Now, let us break it down by race because, obviously, it is
a much better place, if you are Puerto Rican like me and maybe
live in Denver, but in New York it is not a very good place for
people who are African American or Latino. In 2011, a record
685,000 New Yorkers were stopped by the New York City Police
Department. Eighty-eight percent were totally innocent of any
crime; 53 percent of those were black, 34 percent were Latino,
9 percent white. And a remarkable number of guns was found on
0.2 percent of all stops.
Now, with all due respect, Officer Gale, I must demur when
you say that this is all conduct-driven, because clearly these
facts beg otherwise. The fact is that there is a problem, and I
would assert that the reason why--and I think one point where
we agree is that the Fraternal Order of Police nationwide
lacked the trust from communities of color. I think you have
said as much, that you have a PR problem, if you will, with
communities of color. And I would assert that the reason why
you might have that difficulty with the communities of color
you are there to serve is because they know these facts. They
may not know them the way I know them, but they experience it.
And that is precisely why the End Racial Profiling Act is
essential. The data we have already tells us there is a
problem. Let us collect more data, and let us put in place some
remedies.
Your point about the Supreme Court and the Equal Protection
Clause giving sufficient comfort to those who have been wronged
by the police, that is just simply not true. The Supreme Court
case, lamentably, in the case of Whren, which I can cite for
you, basically allows police officers to make pretextual stops
based on race, ethnicity, and national origin. It is the law of
the land, according to our Supreme Court. At times our Supreme
Court gets it wrong, which is why we exhort this Congress and
this Senate to step in and to enact a law when we know that
there is a problem that has yet not come to the attention of
our Supreme Court.
So with all, I thank you for----
Senator Blumenthal. Thank you. My time is up, but I want to
thank all of the witnesses. This has been a very, very
important and useful hearing, and we have some areas of
disagreement which I think we need to explore further. But I
want to thank particularly Mr. Gale and Chief Davis for your
excellent work over the years in law enforcement, and I thank
the Chairman and substituting Chairman for their tolerance and
patience.
Senator Franken. I think you actually call me ``Chairman.''
[Laughter.]
Senator Franken. That is the protocol.
Senator Blumenthal. You know, I think I need the advice--I
have a right to remain silent.
[Laughter.]
Senator Franken. Unfortunately, I do have an appointment,
so I am going to ask my questions, and then you will get the
gavel. Then you will be the Chairman and get every due respect
being called ``Chairman.'' Thank you, Senator Blumenthal.
Everyone here has talked about the importance of
cooperation between law enforcement officers and the
communities they serve, and it seems that everyone agrees that
racial profiling can undermine trust in the authorities and can
cause resentments among the targeted groups. Minnesota is home
to a large population of Somali Americans. In my experience, no
community was more upset than the Somali community when we
learned that a few Somali Americans had gone back to Somalia
and become involved with Al-Shabaab.
When I talked to both FBI Director Mueller and, maybe more
importantly, when I went back to the Twin Cities and talked to
the special agent in charge there, both said that the Somali
community had been cooperative in FBI investigations, and I
think it was because of actually very good police work and very
good work by the FBI in making sure that they earned the trust
of the Somali community there.
My questions are to Chief Davis and to Officer Gale. Both
of you have served as law enforcement officers. How do you earn
the trust of the diverse communities that you serve, some of
whom may be initially skeptical of the police?
Chief Davis. Thank you, Senator. One stop at a time, 1 day
at a time, one interaction at a time. I think when people--I
think we have to, one, acknowledge the history that police have
played, the role of law enforcement with regards to race in
this country. I think we still have generations of people that
remember desegregation. We have generations of people that are
still here that remember when the police were the enforcement
tool and the rule of law with regards to Jim Crow laws and
Black Codes. And so we have to acknowledge that we may start
off with this lack of trust and confidence. So it is one
interaction at a time.
I think the first thing law enforcement can do is
acknowledgment, to take our heads out of the sand and
acknowledge that we have this horrific history. We should
acknowledge that we, whether intentionally or not, still are
engaging in practices that have a very disparate result with
regards to people of color, whether intended or not.
We should put our defensiveness down and realize we are
here to serve, not to be served. And we have to realize that we
are only going to be successful if the community engages with
us. And the more we engage in that, the safer we make them. And
the safer we make our communities, the more they will then
partner with us.
With the evidence showing time and time again in each major
city and community the stronger the relationship between the
police and minority communities, the greater the crime
reduction is going to be. So we do it one interaction at a
time, and we do it by holding officers accountable, but we also
do it by acknowledging that which is in front of us. I think
there is no greater insult as a minority than for someone to
look me in my eyes and insult my intelligence by telling me
that there is not profiling, when everything about me knows
that it is. And I think that is what happens with our
communities, and we need to stop doing that.
Senator Franken. Officer Gale.
Mr. Gale. I think I agree with the chief that you have to
do it one person at a time, but I think you have to be more
global. You have to look at the community you serve and the
different populations in that community, and you have to make a
concerted effort to be in those communities and having dialogue
with those people, and you have to listen. And it does not
matter that you might not agree with the things that they say.
Years ago, I was in the military, and I went to a
leadership school, and they had a manual that said, ``Any
problem, whether real or perceived, is still a problem.'' And I
agree with that, and I have held to that. It does not matter if
it is not the actual problem. If it is perceived to be a
problem by someone or by a group of someones, then we have to
listen, we have to validate it, and we have to dialogue through
it. And I think we have to take agencies and train agencies to
understand who these populations are that they are serving and
what the concerns of those agencies are.
I agree also with Chief Davis that, you know, we have to
acknowledge the history of law enforcement has not always been
one of stellar conduct, and I think that that is being done in
a lot of organizations. I think in the Fraternal Order of
Police we talk about it very honestly and very candidly with
our membership and say this is the way you need to go to
improve your relations with the communities that you serve.
And so it is important to do those things, to hear what
they have to say, but it is also important to explain to them
what the challenges are, what we have to do if we are going to
protect people, you know, what we are faced with as the
challenges when we are protecting communities. And it is
important for us to illustrate that to individuals in the
community because, you know, no one is perfect, but if we
understand each other better and we dialogue more, I think when
there are these honest misunderstandings, we can move past
them.
Senator Franken. Thank you.
Mr. Romero, in your written testimony on behalf of the
ACLU, you wrote about recently uncovered FBI training materials
that rely on bigoted stereotypes of Muslims. I think we can all
agree that those materials are not acceptable. FBI Director
Mueller acknowledged that those materials damaged the FBI's
relationship with Muslim communities, and I commend Chairman
Durbin for his recent letter to the FBI on this subject, and I
am working on a letter to express my concerns as well.
Mr. Romero, what actions should the FBI take to show that
it is serious about reforming its training programs?
Mr. Romero. Thank you for the question, Senator Franken,
and, yes, what I would first point out is, of course, those
memos and files and training manuals surprised us. When we use
the Freedom of Information Act, we go asking for documents that
we do not know exist. And so we use the Freedom of Information
Act as democracy's X-ray, how to get documents that we need,
questions, hunches based on conduct of what we have seen
already, when the FBI has been tracking young Muslim men
between the ages of 18 and 33 asking them to come in for
voluntary fingerprinting and photographing, mapping out
mosques, we had a hunch that they had to have some training
materials that were going to be troubling and problematic. And,
lamentably, our hunches were borne out.
I think, frankly, one thing that the FBI needs to do that I
would encourage--and Director Mueller is a man with whom we
have great disagreements. We have sued him dozens of times.
[Laughter.]
Mr. Romero. But, for the record, he is a man of enormous
credibility. He is probably the man in the Justice Department
both under the Bush and the Obama teams in whom I have the
greatest personal regard and respect sine qua non. And with all
that, I would encourage you to encourage him to take a much
more active position on these threat assessments, which I fear
are only the tip of the iceberg. The Attorney General
guidelines allow now them to begin investigations on anyone
they choose so long as they can claim they are doing it to gain
information on criminal activities, national security, or
foreign intelligence. And the amount of reporting on those
threat assessments is rather limited, as we all know. Asking
those tough questions, how many of these threat assessments
have been opened, how many of them are going, they allow them
to collect unlimited physical surveillance, we encourage the
Attorney General to retire the use of these threat assessments.
But at least at the very first step, you can ask the FBI to do
more vigorous reporting to you, even if it is in camera.
Retraining is essential because, remember, all the folks
who got that lovely little chart showing how the Arab mind is a
cluster mind, and I am quoting verbatim, ``is a clustered
thinker, while the Western mind tends to be a linear thinker,''
they were trained on this. So until we retrain them and tell
them that that is not the case, was never the case, they are
going to continue to do those activities.
And so I think retraining is essential, and probing into
the assessments and how those assessments have been used,
particularly in the Muslim context, I think would be a place of
important focus.
Senator Franken. Thank you, Mr. Romero. And thank you, Mr.
Chairman. I noticed you are back, so I will--you already took
the gavel, didn't you?
[Laughter.]
Senator Franken. Thank you all.
Chairman Durbin [presiding]. Senator Coons.
Senator Coons. Thank you, Chairman Durbin. Thank you for
calling this hearing and for your long and passionate and
vigilant advocacy for civil rights and for your real leadership
in this area, for this legislation and for this hearing.
In my own role prior to becoming a Senator as a county
executive, I worked hard in supervision of about a 380-sworn-
officer department to ensure that we had effective and strong
outreach, not just to traditionally subject to harassment or
questioning, communities like the African American or Latino
communities, but also post-9/11 making sure there was better
training and outreach and relationships with our Muslim
community, given some incidents that occurred with our LGBT
community, and just making sure that we stayed as a policing
organization engaged and accountable.
I just wanted to start, Officer Gale and Chief Davis, but
thanking you for your leadership in the policing community and
for your service to the public. I would appreciate your
starting by just helping me understand what is the impact on a
police force that practices racial profiling, where it is
either part of policy or training, part of history, or part of
current practice. What is the impact on professionalism,
promotion advancement, and cooperation with communities? That
has been touched on, but as you have noticed, because of votes
a number of us have had to step in and out, and I would be
interested in your response to that.
Chief Davis. Thank you, Senator. I think it is multiple
parts, if I may. Inside the organization, which we did not talk
about, an agency that does engage in systemic racial profiling
usually has very low morale because now you have officers
inside the organization that are opposed to it, those that are
engaging in it, and it causes a conflict within itself.
Within a community I would also probably argue that the
community is suffering because now you have a practice in which
they are losing touch with their community, which makes them
very ineffective, and, quite frankly, in today's society it
makes them much more expensive because now you have the cost of
crime going up, you have the cost of litigation because people
are now seeking some type of redress through the court system,
and you have low morale issues, which means you have increases
in sick leave and workers' comp claims. So it is a very
expensive venture when you engage in systemic racial profiling.
And, most importantly, you have a community that is denied some
of their basic rights. So as you know as a county executive,
you cannot serve the community effectively if they do not trust
you.
So there is some historic trust. There is always going to
be some challenges and strains. But to the extent that there is
a legitimate outreach, to the extent which we are trying to--
and I agree with Captain Gale--listen and respond and respect,
I think we have a better chance of being successful.
So the issue of racial profiling, although we are talking
about race, from a chief's perspective, from an executive's
perspective, is poor managerial practice. It results in loss of
revenues, support, causes internal strife. It just is not an
effective strategy.
Senator Coons. Thank you.
Captain Gale, would you agree? Is this bad policing? Does
it have consequences internally?
Mr. Gale. Absolutely. I mean, the consequences of bad
management in any agency result in these perceptions in the
community that the police are not responsive and that they are
victimizing citizens and that they are somehow or another a
rogue force. That is where it all derives from. It all derives
from the management philosophy of the organization. And the
chief is right. It does result in low morale.
But it also results in low morale not just because you are
going to have people in the agency that would disagree with the
practice or the fact that there is no appropriate
accountability for officers who are clearly operating outside
the code of professional conduct. It has low morale when the
community that we serve then becomes, you know, complaining
about us being unprofessional or about the reputation of the
agency being, you know, that of a victimizer as opposed to a
protector. And the chief is absolutely right. It starts with
the management. It starts with the very top person and the top-
level people allowing these things to occur in individuals that
they won't hold accountable.
As a captain in my agency, I believe it is my charge to
hold people accountable when they conduct themselves
unprofessionally, and I do so. You know, I think some people
have said here that, well, you know, there seems to be some
kind of great thing going on in Denver or what have you. I am
just going to tell you--and I love my city, and it is a great
city, and please feel free to visit anytime.
[Laughter.]
Mr. Gale. But I am just going to tell you, we hold people
accountable in my agency. We hold them accountable, and that is
expected. You know, we do not have to have specific rules that
say you cannot do this, because we all know what bad behavior
is when we see it. And if you challenge people and you hold
them accountable, then there will not be a problem. But the end
result is that officers will just shut down and not conduct any
type of police work, and then the city does not get protected.
Chief Davis. Senator, if I may add one point, there is a
phrase we have, especially for chiefs, and it talks about a
moment of pause. And what happens is when an agency does not
have the type of trust and confidence that we are alluding to,
that we are discussing, in many cases you have racial powder
kegs that are sitting there. And if you look at our history,
there has usually been some type of incident. And it gets
confusing because quite often the incident may not be--it may
be a legal incident. It may be something that really by itself
would not make sense to call such a response. But it reflects
years of abuse and neglect; it reflects the kind of--I think
one of the Congresspersons said earlier, ``Enough is enough.''
And so when agencies are blind to this or systematically
engaging in it, they are sitting on these powder kegs that an
incident like a Trayvon Martin or an Oscar Grant in Oakland can
ignite. And then that is when we see large demonstrations and
you start having race riots, because it is not the incident by
itself as much as it the buildup to that incident, the lack of
acknowledgment of where we were before.
Senator Coons. And, Chief, if I have heard all the members
of the panel right who have said that racial profiling is bad
policy, it is not just those powder keg moments; it is also the
simmering distrust, the disconnect from the community you seek
to protect and to serve that can also have a negative impact on
your effectiveness, on your ability to effectively police. That
is something we have heard across the whole panel.
I wanted to move, if I could, Professor Harris, to a
question about standards. If you look at the reasonable
suspicion standard that controls the ability of law enforcement
to stop and question an individual as opposed to probable
cause, which covers the rest, profiling appears to me just at
first blush to be a much larger problem potentially in the area
of reasonable suspicion. How have you seen that play out? What
do you think is important in fighting that standard? And then I
am going to want to move to this bill and why it might be
necessary. Professor?
Professor Harris. Thank you for the question, Senator. You
are absolutely right. You put your finger on something very
important. The reasonable suspicion standard arises in Terry v.
Ohio, the case that allows police officers to use stop-and-
frisk when there is reasonable fact-based suspicion. The
problem is and where this can intertwine with profiling is that
reasonable suspicion is a very low legal standard. It is lower
than probable cause. When I am in class, I like to say probable
cause is somewhere near my waist, reasonable suspicion is below
my knees.
And you have a standard where you can use very little
evidence to take significant police action, and where we see
this showing up in the context of profiling, to give you one
example, is in the stop-and-frisk activity in New York City
over many years, and it is a good example because there is a
very significant amount of data on this. We often find that
even though the standard is reasonable suspicion, there is
hardly anything recorded and sometimes nothing at all recorded
reflecting reasonable suspicion or the idea is simply thought
of as boilerplate. So with that low a standard, profiling and
other ineffective approaches to law enforcement run rampant,
and we have the kind of statistics that Mr. Romero cited just a
minute ago.
Senator Coons. Thank you.
Mr. Romero, if I might, if racial profiling can be a
violation of civil rights, as I believe it is under a whole
line of cases--Martinez, Forte, Brignoni-Ponce, Montero,
Camargo--these are not cases I am familiar with personally, but
that is the line of analysis, I think, by the Supreme Court
that has laid this out. Why do we not see more enforcement
actions for racial profiling by the Department of Justice? And
if you would just followup on Professor Harris' comment, how do
we, in the gap between the formal policies, create police
entities that, as Captain Gale describes it, are accountable,
are professional, and where at all levels are engaged in moving
us forward toward a more just and effective policing community?
Mr. Romero. Thank you for the question, Senator Coons. When
you look at the testimony we submitted, you will see that we
detail a number of the seminal racial profiling cases, in fact,
some of them brought by David Harris. What might be instructive
for why this piece of legislation is essential is to track when
the incident occurred and when the case was decided, because
you will note that in many instances--and the one I am looking
at now--you are looking at a span of several years of time
between when you will get pulled over by a police officer on a
highway in the case of Robert Wilkins and ultimately when that
case was decided by a court. And for many minority group
members, especially those in our communities and families who
lack resources to hire private attorneys, it is not simple or
economic to retain private counsel, even when you have been
wronged. We turn away many, many cases and individuals who
write to us every day simply because we lack the resources to
take on every single case. We take on cases where we think we
have an ability to have a high impact and change systemically
at the highest levels.
The number of heart-breaking letters I send back saying,
``I understand you were profiled by the police, but we have
them under a consent decree and so we will throw your fact
scenario into the consent decree,'' does not really give the
individual who has often been aggrieved, even if they are
willing to step forward, much comfort.
I think that is really what is at stake here. I think the
burden on hundreds of thousands of New Yorkers, let us say the
400,000-plus that I cited that have been wrongfully stopped by
the police, the idea that you would ask 400,000 New Yorkers who
were innocent and yet stopped by the police to file all
individual lawsuits, I cannot believe that any Member of this
chamber would believe that would be an efficient use of our
resources. This is one of the times when by the Senate taking
action and putting in place a legal regime and being able to
stop the type of rush to the courthouse steps you do both the
economy and our civil liberties a service.
Chief Davis. Senator, if I may, the one area going to the
question you had about the lawsuits or why people cannot file
the complaint is in many cases I think the bigger challenge is
that it may actually follow a legal stop. This is why the
legislation is critical, why data collection is critical. I
think when you think of profiling, people sometimes,
unfortunately, think that the stop itself may not have legal
cause. So we have a phrase in policing, ``Give me a car, 2
minutes, and a vehicle code, and I will find a reason to stop
you.'' And so the stop may be justified--cracked windshield,
bald tires--you know, you will see those low discretionary
stops being used quite often to get to, as the Whren decision
talked about, a pretext for other things.
So where it makes it hard on an individual basis is a
person is complaining about being stopped, but, in fact, they
did have a cracked tail light, and it makes it hard for that
individual case, which then what you do is track holistically
to see that that is the 10,000th cracked windshield and 90
percent of them may be all of one group of color.
Senator Coons. I see that I am well past my time, and I
appreciate the concerns that have been raised by this
conversation in this hearing today about the definition of
racial profiling, about the importance of being narrowly
targeted in a legislative response, but I am grateful, Chairman
Durbin, for your crafting a bill that insists on training, on
data collection, and on a narrowly crafted response to a
significant problem. Thank you very much.
Chairman Durbin. Thanks, Senator Coons. And following up on
your question, I think one of the obstacles--and Mr. Romero
probably can back this up--is that when you are dealing with
the question of whether or not race or ethnicity or profiling
was the sole cause for the stop, you run into a real obstacle.
Our staff did a little research on this, and it turns out this
is not the first time that Congress has talked about this.
Arguing that discrimination should only be prohibited if it is
based solely on race and ethnicity has an unfortunate
congressional lineage. Segregation has attempted to gut the
Civil Rights Act of 1964 by offering an amendment that would
have limited the Act's reach to discrimination based solely on
race.
Senator Clifford Case of New Jersey argued in opposition.
He said, ``This amendment would place upon persons attempting
to prove a violation of this section, no matter how clear the
violation was, an obstacle so great as to make the title
completely worthless.''
And Senator Warren Magnuson of Washington said limiting the
Civil Rights Act to discrimination based solely on race would
``negate the entire purpose of what we are trying to do.''
So the courts have set a standard which makes it extremely
difficult, and, Chief Davis, your examples--and it might be a
cracked tail light was the reason they are being pulled over.
What we found in Illinois, incidentally, to go to my own State,
consent searches by the Illinois State Police between 2004 and
2010, Hispanic motorists in my State were 2 to 4 times more
likely to be searched, African American motorists 2 to 3 times
more likely to be subject to consent searches than white
motorists. However, white motorists were 89 percent more likely
than Hispanic motorists and 26 percent more like than African
American motorists to have contraband in their vehicles. So it
made no sense from a law enforcement viewpoint to do this, and
yet it is done.
I thank you for this hearing, and I am sorry it took 10
years to get back together, and I am sorry that we need to get
back together. But to put it in historic perspective, if you go
back to our Nation's very beginning, our Founding Fathers
started wrestling with issues of race and gender and religion,
and this year's Presidential campaign wrestles with issues of
race and gender and religion. It is an ongoing debate in this
Nation. There have been moments of great leadership, and there
have been moments of ignominious conduct.
As far as accountability is concerned, yes, this would hold
law enforcement accountable. But I hope we hold every person in
our Government accountable, including Members of Congress. And
let me concede I came to this job saying--remembering what Bill
Clinton once said when he was being interviewed before he
became President: ``Is there any issue you will not compromise
on?'' He said, ``I will never compromise on race.'' He said
that as a man who grew up in Arkansas and saw segregation. I
thought, ``That is a good standard, Durbin. You saw it, too, in
your hometown. Hold to that standard.''
And I look back and remember in my time in the House of
Representatives voting for a measure that turned out to have a
dramatically negative racial impact: the establishment of the
crack cocaine standard in sentencing of 100:1. Years later, I
was given an opportunity on this Committee to try to make that
right and bring it back to 1:1. I could not get the job done.
Because of the nature of compromise, it has been reduced to
18:1--still a terrible disparity, but a dramatic improvement.
What happened as a result of that bad vote by black and
white Congressmen? We lost trust in the African American
community. Many people serving on juries said, ``I am not going
to do this. I am just not going to send that woman, that
person, away for 10 or 20 years because of a crack cocaine
violation.'' We lost their trust, Office Gale, and I could see
it when the judges came and talked to us about it. We have
moved back to try to establish some trust in that community by
doing the right thing, but we need to be held accountable, this
Senator and all of us. Whether we are in elected or appointed
office in our Government, we serve. We serve the public. And
that accountability has to be part of that service.
This is not going to resolve the issue. I think it is, as I
mentioned earlier, more complicated today because of concealed-
carry and some of the standards being established in States,
more complicated today, as Mr. Clegg has said, because the war
on terror raises legitimate concerns about the safety of our
Nation and how far will we go to respect our national security
without violating our basic values under the Constitution.
I thank you all for your testimony. It has been a very
positive part of this conversation, which we need to engage in
even further. There is a lot of interest in today's hearings:
225 organizations submitted testimony. Thank goodness they did
not come here to speak, but we are glad to have their
testimony, and we will put it in the record, without objection.
It will include the Episcopal Church, the Illinois Association
Chiefs of Police, the Illinois Coalition for Immigrant and
Refugee Rights, the Japanese American Citizens League, the
Leadership Conference for Civil and Human Rights, Muslim
Advocates, NAACP, National Council of La Raza, National
Integration Forum, the Rights Working Group, the Sikh
Coalition, the South Asian Americans Leading Together, and the
Southern Poverty Law Center. These statements will be made of
the record, which will be kept open for a week for additional
statements.
[The information appears as a submission for the record.]
Chairman Durbin. It is possible someone will send you a
written question. It does not happen very often, but if they
do, I hope you will respond in a timely way.
Without further comment, I thank all of my witnesses for
their patience and for attending this hearing, and I look
forward to working with all of you.
[Whereupon, at 12:20 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows.]
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