[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

[[Page S2271]]

     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

[[Page S2272]]

     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.

                          ____________________