[Congressional Record Volume 147, Number 34 (Wednesday, March 14, 2001)]
[Senate]
[Pages S2270-S2272]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RACIAL PROFILING
Mr. FEINGOLD. Mr. President, we Americans take pride in our freedom
and independence. Central to our sense of who we are is our firm belief
that we are free to walk the paths of our own choosing, free to move
about as we please, free from the intrusion of the government in that
movement.
As Thomas Jefferson wrote in his Draft of Instructions to the
Virginia Delegates in the Continental Congress, ``The God who gave us
life, gave us liberty at the same time.''
From the start, immigrants came to these shores to escape the state's
intrusion into their lives. When in the early 1600's, the English
government began arresting Separatists for their religious practices,
about a hundred of them became the Pilgrims and sailed to Plymouth.
When in 1620 the Parliament enacted a law requiring all to worship
according to the laws of the Church of England, the Puritans came to
Massachusetts, the Quakers came to New Jersey and then Pennsylvania,
and Catholics came to Maryland.
When, in 1636, Roger Williams sought freedom from the intrusions of
the Massachusetts colony into religious practices, he founded Rhode
Island. And two decades later, Jews fleeing the persecutions of
numerous states settled there in Newport.
Even separated by the Atlantic Ocean, however, the American colonists
continued to chafe at the intrusion of the British government into
their lives. Among the colonists' foremost grievances was the manner in
which the British government harassed and searched Americans without
reason or probable cause. The British government did so under color of
general warrants known as ``writs of assistance,'' which gave British
customs officers blanket authority to search where they pleased for
goods imported in violation of British tax laws.
This harassment by the state's officers helped to spark the American
Revolution. In 1761, the Massachusetts patriot James Otis attacked the
writs and their use to hound American colonists as, he said, ``the
worst instrument of arbitrary power, the most destructive of English
liberty, and the fundamental principles of law, that ever was found in
an English law book,'' because, in Otis' words, they placed ``the
liberty of every man in the hands of every petty officer.''
Otis' argument did much to sow the seeds of America's Declaration of
Independence. ``Then and there,'' said John Adams, ``then and there was
the first scene of the first act of opposition to the arbitrary claims
of Great Britain. Then and there the child Independence was born.''
The Supreme Court later wrote: ``Vivid in the memory of the newly
independent Americans were those general warrants known as writs of
assistance under which officers of the Crown had so bedeviled the
colonists.'' And in another case, the Court wrote: ``It is familiar
history that indiscriminate searches and seizures conducted under the
authority of `general warrants' were the immediate evils that motivated
the framing and adoption of the Fourth Amendment.''
That Amendment states:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Early on, Chief Justice Marshall assumed that the Fourth Amendment
was intended to protect against arbitrary arrests. And that position
has become settled law. More recently, the Supreme Court has said:
Unreasonable searches or seizures conducted without any
warrant at all are condemned by the plain language of the
first clause of the Amendment.'' The Court went on to state
that ``the warrantless arrest of a
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person is a species of seizure required by the Amendment to
be reasonable.
It is thus fundamental to American history and rooted in American law
that the officers of the state may not arrest or detain its citizens
arbitrarily or without cause. Our law and Constitution protect our
freedom to walk those paths of our own choosing, free from the
intrusion of the government as we walk.
And it is that very individual freedom that gives our great Nation
its strength. As John Quincy Adams wrote: ``Individual liberty is
individual power, and as the power of a community is a mass compounded
of individual powers, the nation which enjoys the most freedom must
necessarily be in proportion to its numbers the most powerful nation.''
The point of my comments today is this is not the case for all
Americans.
But, some Americans still cannot walk where they choose. Some
Americans cannot travel free from the harassment of the government.
Some Americans still do not receive the full benefit of their civil
rights.
Too many Americans are subject to being detained by officers of the
state without reasonable suspicion, without good reason, for no other
reason than the color of their skin.
As I noted at the outset of my remarks, many came to these shores as
immigrants to escape the intrusive state. We must not forget that many
also came to these shores in chains, because of the color of their
skin. They and their decendents endured our Nation's long struggle
against slavery and discrimination.
Sadly, even now, skin color alone still makes too many Americans more
likely to be a suspect, more likely to be stopped, more likely to be
searched, more likely to be arrested, and more likely to be imprisoned.
The numbers alone are devastating: A 1999 ACLU report found that
along Interstate 95 in Maryland, while African-Americans were only 17
percent of the drivers and traffic violators, African-Americans
accounted for an alarming 73 percent of the drivers searched.
Last November, a front-page New York Times story reported that New
Jersey state documents acknowledged that at least 8 of every 10
automobile searches carried out by state troopers on the New Jersey
Turnpike over most of the last decade were conducted on vehicles driven
by African-Americans and Hispanics.
Racial profiling is not limited to I-95. The Justice Department has
recently been investigating 14 police departments for civil rights
violations, including Charleston, West Virginia; Riverside, California;
Orange County, Florida; Prince George's County, Maryland; Eastpointe,
Michigan; New Orleans; Buffalo; Washington; and New York City. In Los
Angeles, the Justice Department recently forced the police department
to accept an independent monitor's supervision after a 4-year
investigation of police abuse in the city's largely minority Rampart
section.
The practice of racial profiling has not respected status or
standing, wealth or privilege.
Last September, the Director of Personnel at the White House, Bob
Nash, and his wife were stopped for no other apparent reason than that
they are African-American. As Mr. Nash said at the time:
Until that moment, we had an intellectual understanding of
the bogus crime, ``Driving While Black.'' But, in a few
terrifying moments, we felt it more deeply and more
personally than any words could ever convey. Said Nash, the
experience left them embarrassed, humiliated and afraid for
our lives.
The Houston Chronicle reported that last year the Border Patrol
pulled over and questioned United States District Judge Filemon Vela
traveling to court--not once but twice--as part of an immigration
crackdown in South Texas, called Operation Rio Grande.
Last November, the well-known singer Lenny Kravitz was handcuffed and
detained by Miami Beach police. Mr. Kravitz, whose 1989 song ``Mr. Cab
Driver'' speaks out against racial profiling, appears to have fallen
victim to it himself. Said Kravitz:
I was very concerned and upset. Being black, I've dealt
with all kinds of things because of my color, but nothing
like this.
Last month, 60 Minutes aired the story of Harvard law student Bryonn
Bain, who appears to have been the victim of ``walking while black.''
He was stopped by police while simply walking down the street. In an
article in the May 2, 2000, Village Voice, Bain said:
After hundreds of hours and thousands of pages of legal
theory in law school, I have finally had my first real lesson
in the Law.
Said Bain:
The lesson for the day was that there is a special Bill of
Rights for nonwhite people in the United States--one that
applies with particular severity to Black men. It has never
had to be ratified by Congress because--in the hearts of
those with the power to enforce it--the Black Bill of Rights
is held to be self-evident.
Plainly, the practice of racial profiling is profoundly at variance
with the fundamental tradition of American law and justice.
In 1790, President George Washington wrote the congregation of Touro
Synagogue in Newport, Rhode Island, in words that are etched in the
Holocaust Memorial Museum in Washington:
The government of the United States . . . gives to bigotry
no sanction, to persecution no assistance.
But what other than ``bigotry'' and ``persecution'' can we call this
practice of ``racial profiling,'' which targets drivers, airline
passengers, or pedestrians, not because of any action they take, not
because of any probable cause, but solely because of the color of their
skin. Too many law enforcement entities have made a crime out of DWB--
``Driving While Black.''
Among the many corrosive effects of this insidious practice is the
way it undermines the willingness of good people to work with the
police. As one victim of racial profiling in Glencoe, Illinois, said:
Who is there left to protect us? The police just violated
us.
As the U.S. Civil Rights Commission found last year:
Communities of color do not want to choose between safety
and civil rights.
They should not have to.
We as a Nation cannot and should not tolerate this injustice. As the
philosopher Herbert Spencer wrote:
No one can be perfectly free till all are free.
And as Woodrow Wilson said:
Liberty does not consist . . . in mere general declarations
of the rights of man. It consists in the translation of those
declarations into definite action.
Many leaders have spoken out against this intolerable abuse. Many
have worked to translate the traditions of American law and justice
into legislation to address this evil.
First and foremost is our colleague in the other body, Representative
John Conyers. Representative John Conyers has been at the forefront of
legislative efforts on this subject. We have worked together on
legislation focused on a study of traffic stop data. Shortly,
Congressman Conyers and I will introduce, along with many of our
colleagues, an improved version of that bill.
Last Congress and this Congress, I have been proud to cosponsor a
bill introduced by my friend and colleague from Illinois, Senator
Durbin, that focuses on ``flying while Black''--the practice of
targeting people of color to be stopped and searched in airports.
Senator Durbin has provided valuable leadership on this issue.
Let me take a moment to notice the very intense and sincere efforts
of a new colleague of ours, Senator Jon Corzine, of New Jersey, who has
made addressing this racial profiling issue one of his top priorities.
I very much look forward to working with the new Senator from New
Jersey on this issue.
Leaders of both parties have expressed support for doing something
about racial profiling.
During the second Presidential debate, on October 11 of last year,
then-Governor Bush said that he would support or sign as President a
federal law banning racial profiling by police and other authorities at
all levels of government.
Governor Bush said:
I can't imagine what it would be like to be singled out
because of race and stopped and harassed. That's just flat
wrong, and that's not what America's all about. And so we
ought to do everything we can to end racial profiling.
Governor Bush went on:
I do think we need to find out where racial profiling
occurs and do something about it. And say to the local folks,
get it done, and if you can't, there'll be a federal
consequence.
He further said:
[R]acial profiling isn't just an issue at the local police
forces. It's an issue throughout
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our society. And as we become a diverse society, we're going
to have to deal with it more and more.
I believe, sure as I'm sitting here, that most Americans
really care. They're tolerant people. They're good, tolerant
people. It's the very few that create most of the crisis. And
we just happen to have to find them and deal with them.
On February 9 of this year, at remarks marking Black History Month,
President Bush said that he would ``look at all opportunities'' to end
racial profiling. While visiting a predominantly African-American
elementary school here in Washington, D.C., President Bush said:
I'll look at all opportunities, starting with the gathering
of information where the federal government can help
jurisdictions gather information, compile information, to get
the facts on the table to make sure people are treated fairly
in the justice system.
And in his State of the Union Address two weeks ago, the President
addressed the issue again. There, he said:
As government promotes compassion, it also must promote
justice. Too many of our citizens have cause to doubt our
nation's justice when the law points a finger of suspicion at
groups instead of individuals. All our citizens are created
equal and must be treated equally. Earlier today, I asked
John Ashcroft, the Attorney General, to develop specific
recommendations to end racial profiling. It's wrong, and we
will end it in America.
I certainly welcome our new President's comments.
Attorney General Ashcroft has also stated that racial profiling will
be a priority in his Department of Justice. At his confirmation hearing
on January 17, Senator Ashcroft said:
I think racial profiling is wrong. I think it's
unconstitutional. I think it violates the 14th Amendment. I
think most of the men and women in our law enforcement are
good people trying to enforce the law. I think we all share
that view. But we owe it to provide them with guidance to
ensure that racial profiling does not happen. I look forward
to working together with you to try to find a way to do that.
Senator Ashcroft summed up:
I will make racial profiling a priority of mine.
In a follow-up written question to that hearing, I asked Senator
Ashcroft whether his opposition to racial profiling included racial
profiling of airline passengers or people walking down the street.
Senator Ashcroft replied:
I have stated my strong opposition to racial profiling
across the spectrum. There should be no loopholes or safe
harbors for racial profiling. Official discrimination of this
sort is wrong and unconstitutional no matter what the
context.
And two weeks ago, at an extensive statement and press conference on
the subject, Attorney General Ashcroft said:
I have long believed that to treat people solely on the
basis of their race was a violation of the 14th Amendment to
the U.S. Constitution.
He declared: ``It's wrong,'' and said:
I believe Congress can, and will, respond constructively.
Attorney General Ashcroft also sent a letter to the Chairmen and
Ranking Democratic Members of the Judiciary Committees on this subject,
and I ask unanimous consent that a copy of that letter be printed in
the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. FEINGOLD. Mr. President, Wisconsin's former Governor Tommy
Thompson, now Secretary of Health and Human Services, created a Task
Force on Racial Profiling when he was Governor. That Task Force just
completed its report, and concluded, among other things, that more data
is needed, and recommended data collection. Congressman Conyers and our
legislation calls for data collection, among other things.
I am pleased that the President and Members of his Cabinet recognize
the gravity of this issue for all Americans. Particularly in the wake
of the racially divisive election and nomination of Attorney General
Ashcroft, the Administration needs to make special efforts to heal the
wounds that separate us as a Nation. And with the support of the
Administration, we should be able to enact racial profiling legislation
this year.
But we should do more. Once again, I call on President Bush to
resubmit the nomination of Judge Ronnie White to serve as a U.S.
District Court judge.
I also call on the President publicly to support the nomination of
Judge Roger Gregory to the Fourth Circuit Court of Appeals.
These distinguished jurists deserve to sit on the Federal bench. And
the effective administration of justice in America demands that the
Federal courts, even the Fourth Circuit Court of Appeals, reflect the
diversity of this Nation.
Let us do more to advance the cause of justice for all, and then we
can truly live out the ancient wisdom, inscribed on the Liberty Bell,
and ``[p]roclaim liberty throughout all the land unto all the
inhabitants thereof.''
I yield the remainder of my time.
Exhibit 1
Office of the Attorney General,
Washington, DC, February 28, 2001.
Hon. Patrick Leahy,
Ranking Minority Member, Committee on the Judiciary, U.S.
Senate, Washington, DC.
Dear Senator Leahy: As you know, I received a directive
from the President late yesterday asking me to work with
Congress to develop effective methods to determine the extent
to which law enforcement officers in the United States engage
in the practice of racial profiling. As you further know,
racial profiling is the use of race as a factor in conducting
stops, searches, and other investigative procedures. While we
all recognize that the overwhelming majority of law
enforcement officers perform their demanding jobs in an
outstanding manner, any practice of racial profiling, even by
a small minority, is unacceptable.
You may recall that during the hearing I held on the
subject last year as a Senator, I stated that racial
profiling, even if practiced only by a few, is extremely
problematic for two reasons. First, it undermines the public
trust in the impartiality of law enforcement officers which
is essential to effective law enforcement. Second, and more
importantly, I personally believe such a practice violates
the Equal Protection Clause of the Fourteenth Amendment to
the Constitution. I share the President's commitment to
ending any unequal treatment of Americans, particularly by
law enforcement.
To this end, I urge you in your capacity as Ranking Member
of the Judiciary Committee to consider quickly legislation
authorizing the Department of Justice to conduct a study of
traffic stops data that currently is being collected
voluntarily by law enforcement agencies across the country.
Such a study will assist us in determining the extent of the
problem of racial profiling.
The Traffic Stops Statistics Study Act introduced last
Congress by Congressman Conyers in the House, and proposed by
Senator Feingold in the Senate, is an excellent starting
place for such an enterprise. I would hope that any
legislation you consider makes clear that such information is
provided voluntarily, in order to quell any potential
federalism concerns. Such legislation ought to permit
consideration of broad categories of data, such as the
reasons and circumstances of any stop, the identifying
characteristics of the driver and passengers as perceived and
discernable by the officer making the stop, the
characteristics of the officer making the stop, the racial or
ethnic composition of the area in which the stop was made,
and any other data that will ensure as full a picture as
possible of these contacts, such as arrest and conviction
outcomes linked to traffic stops. In order to encourage
participation, the legislation hopefully will make clear that
the legislation will not change the burdens or standards of
proof in any lawsuits. The legislation, therefore, would lend
to a better study, by emphasizing the importance and
seriousness of the issue while, at the same time, encouraging
cooperation.
I am eager to begin work on this important task, and hope
that Congress will consider such legislation quickly. If
Congress is unable to authorize such a study in 6 months, I
will instruct the Department to begin promptly its own study
of available data. I look forward to working with you on this
important issue to ensure that all Americans are guaranteed
equal justice under law.
Sincerely,
John Ashcroft,
Attorney General.
Mr. FEINGOLD. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________