[Congressional Record Volume 146, Number 45 (Tuesday, April 11, 2000)]
[Senate]
[Pages S2533-S2534]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself and Mr. Feingold):
  S. 2393. A bill to prohibit the use of racial and other 
discriminatory profiling in connection with searches and detentions of 
individuals by the United States Customs Service personnel, and for 
other purposes; to the Committee on Finance.


                  the reasonable search standards act

 Mr. DURBIN. Mr. President, I rise today to introduce the 
Reasonable Search Standards Act. This act prohibits racial or other 
discriminatory profiling by Customs Service personnel. Representative 
John Lewis from Georgia has introduced similar legislation in the 
House.
  Two years ago, I requested a GAO study of the U.S. Customs Service's 
procedures for conducting inspections of airport passengers. The need 
for this study grew out of an investigation report by Renee Ferguson of 
WMAQ-TV in Chicago and several complaints from African-American women 
in my home state of Illinois who were strip-searched at O'Hare Airport 
for suspicion of carrying drugs. No drugs were found and the women felt 
that they had been singled out for these highly intrusive searches 
because of their race. These women, approximately 100 of them, have 
filed a class action suit in Chicago.
  The purpose of the GAO study was to review Customs' policies and 
procedures for conducting personal searches of airport passengers and 
to determine the internal controls in place to ensure that airline 
passengers are not inappropriately targeted or subjected to personal 
searches.
  Approximately 140 million passengers entered the United States on 
international flights during fiscal years 1997 and 1998. Because there 
is no data available on the gender, race and citizenship of this 
traveling population, GAO was not able to determine whether specific 
groups of passengers are disproportionately selected to be searched.
  However, once passengers are selected for searches, GAO was able to 
evaluate the likelihood that people with various race and gender 
characteristics would be subjected to searches that are more personally 
intrusive, such as strip-searches and x-rays, rather than simply being 
frisked or patted down.
  The GAO study revealed some very troubling patterns in the searches 
conducted by U.S. Customs Service inspectors.
  GAO found disturbing disparities in the likelihood that passengers 
from certain populations groups, having been selected for some form of 
search, would be subjected to the more intrusive searches including 
strip-searches or x-ray searches. Moreover, that increased likelihood 
of being intrusively searched did not always correspond to an increased 
likelihood of actual carrying contraband.
  Because of the intrusive nature of strip-searches and x-ray searches, 
it is important that the Customs Service avoid any discriminatory bias 
in forcing passengers to undergo these searches.
  GAO found that African-American women were much more likely to be 
strip-searched than most other passengers. This disproportionate 
treatment was not justified by the rate at which these women were found 
to be carrying contraband. Certain other groups also experienced a 
greater likelihood of being strip-searched relative to their likelihood 
of being found carrying contraband.
  Specifically, African-American women were nearly 3 times as likely as 
African-American men to be strip-searched, even though they were only 
half as likely to be found carrying contraband. Hispanic-American and 
Asian-American women were also nearly 3 times as likely as Hispanic-
American and Asian-American men to be strip-searched, even though they 
were 20 percent less likely to be found carrying contraband.
  In addition, African-American women were 73 percent more likely than 
White-American women to be strip-searched in 1998 and nearly 3 times as 
likely to be strip-searched in 1997, despite only a 42 percent higher 
likelihood of being found carrying contraband. Moreover, among non-
citizens, White men and women were more likely to be strip-searched 
than Black and Hispanic men and women, despite lower rates of being 
found carrying contraband.
  As with strip-searches, x-rays are personally intrusive and it is of 
particular concern that the Customs Service avoid any discriminatory 
bias in requiring x-ray searches of passengers suspected of carrying 
contraband.
  GAO found that African-Americans and Hispanic-Americans were much 
more likely to be x-rayed than other passengers. This disproportionate 
treatment was not justified by the rate at which these passengers were 
found to be carrying contraband.
  Specifically, GAO found that African-American women were nearly 9 
times as likely as White-American women to be x-rayed even though they 
were half as likely to be carrying contraband. African-American men 
were nearly 9 times as likely as White-American men to be x-rayed, even 
though they were no more likely than White-American men to be carrying 
contraband. Moreover, Hispanic-American women and men were nearly 4 
times as likely as White-American women and men to be x-rayed, even 
though they were only a little more than half as likely to be carrying 
contraband. And among non-citizens, Black women and men were more than 
4 times as likely as White women and men to be x-rayed, even though 
Black women were only half as likely and Black men were no more likely 
to be found carrying contraband.
  For these reasons, I am introducing the Reasonable Search Standards 
Act. This bill is a direct response to the concerns raised by the GAO 
report. The bill prohibits Customs Service personnel from selecting 
passengers for searches based in whole or in part on the passenger's 
actual or perceived race, religion, gender, national origin, or sexual 
orientation.
  To ensure that a sound reason exists for selecting someone to be 
searched, the bill requires Customs Service personnel to document the 
reasons for searching a passenger before the passenger is searched. The 
only exception to this requirement is when the Customs official 
suspects that the passenger is carrying a weapon.
  The bill also requires all Customs Service personnel to undergo 
periodic training on the procedures for searching passengers, with a 
particular emphasis on the prohibition on profiling. The training shall 
include a review of the reasons given for searches, the results of the 
searches and the effectiveness of the criteria used by Customs to 
select passengers for searches.
  Finally, the bill calls for an annual study and report on detentions 
and searches of individuals by Customs Service personnel. The report 
shall include the number of searches conducted by Customs Service 
personnel, the race and gender of travelers subjected to the searches, 
the type of searches conducted--including pat down searches and 
intrusive non-routine searches--and the results of these searches.
  With this proposed legislation, I call on the Congress of the United 
States to act, to make a commitment giving all persons entering and 
leaving our borders, regardless of gender, race, color,

[[Page S2534]]

religion, or ethnic background, the right to be treated fairly.
  Lyndon B. Johnson once said, ``I am a free man, an American, a United 
States Senator, and a Democrat, in that order.'' I am also all of 
these, in that order.
  As a man, I am saddened that, in this new millennium, women and 
minorities are disproportionately selected for intrusive searches at 
our nation's borders.
  As an American, I am deeply troubled by the thought that any citizen, 
or non-citizen, might be detained and stripped or x-rayed because of 
their gender or the color of their skin.
  As a United States Senator, I am proposing legislation to prohibit 
racial or other inappropriate profiling and establish statutory 
procedures to track and prevent disproportionate search rates. This 
approval reflects our nation's basic posture of common sense and common 
justice.
  I implore my colleagues to examine this issue from the viewpoint of 
the nation and its entire people. In the immortal words of John F. 
Kennedy, ``The rights of every man are diminished when the rights of 
one man are threatened.''
                                 ______