[Congressional Record Volume 151, Number 162 (Friday, December 16, 2005)]
[Senate]
[Pages S13804-S13809]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Corzine, Mr. Lautenberg, Mr. 
        Kennedy, Mr. Durbin, Mr. Kerry, Mrs. Boxer, Mr. Dodd, Ms. 
        Cantwell, Ms. Mikulski, Mr. Obama, and Ms. Stabenow):
  S. 2138. A bill to prohibit racial profiling; to the Committee on the 
Judiciary.
  Mr. FEINGOLD. Mr. President, today I will introduce the End Racial 
Profiling Act of 2005. I am proud to be joined again by my friend from 
New Jersey, Senator Corzine, and a number of other cosponsors. It is 
fitting that this bill will be introduced in one of the final days of 
Senator Corzine's service in this body. He has been a major force in 
efforts to advance this legislation from the day he joined the Senate 4 
years ago.
  Ending racial profiling in America has been a priority for me for 
many years. I worked with the senior Senator from New Jersey, Mr. 
Lautenberg, back in 1999 on a bill to collect statistics on racial 
profiling. In 2001, in his first State of the Union address, President 
Bush told the American people that ``racial profiling is wrong and we 
will end it in America.'' He asked the Attorney General to implement a 
policy to end racial profiling.
  The Department of Justice released a Fact Sheet and Policy Guidance 
addressing racial profiling in 2003, stating that racial profiling is 
wrong and ineffective and perpetuates negative racial stereotypes in 
our country. Though these guidelines are helpful, they do not end 
racial profiling and they do not have the force of law. Unfortunately, 
more than 4 years after the President's ringing endorsement of our 
goal, racial profiling has not ended in this country.
  I am proud today, therefore, to introduce the End Racial Profiling 
Act of 2005. This bill will do what the President promised; it will 
help America achieve the goal of bringing an end to racial profiling. 
This bill bans racial profiling and requires Federal, State and local 
law enforcement officers to take steps to end it.
  Racial profiling is the practice by which some law enforcement agents 
routinely stop African Americans, Latinos, Asian Americans, Arab 
Americans and others simply because of their race, ethnicity, national 
origin, or perceived religion. Reports in States from New Jersey to 
Florida, and Maryland to Texas all show that African Americans, 
Hispanics, and members of other minority groups are being stopped by 
some police far more often than their share of the population and the 
crime rates for those racial categories.
  Passing this bill is even more urgent after September 11, as we have 
seen racial profiling used against Arab and Muslim Americans or 
Americans perceived to be Arab or Muslim. The September 11 attacks were 
horrific, and I share the determination of many Americans that finding 
those responsible and preventing future attacks should be this Nation's 
top priority. This is a challenge that our country can and must meet. 
But we need improved intelligence and law enforcement. Making 
assumptions based on racial, ethnic, or religious stereotypes will not 
protect our nation from crime and future terrorist attacks.
  Numerous Government studies have shown that racial profiling is 
entirely ineffective. Some police departments around the country have 
recognized the many problems with racial profiling. In response, those 
departments have developed programs and policies to prevent racial 
profiling and comply with the Department of Justice's policy guidance. 
In my own State of Wisconsin, law enforcement officials have taken 
steps to train police officers, improve academy training, establish 
model policies prohibiting racial profiling, and improve relations with 
our State's diverse communities. I applaud the efforts of Wisconsin law 
enforcement. This is excellent progress and shows widespread 
recognition that racial profiling harms our society. But like the DOJ 
policy guidance, local programs don't have the force of law behind 
them. The Federal Government must step up, as President Bush promised. 
The Government must play a vital role in protecting civil rights and 
acting as a model for State and local law enforcement.
  Now, perhaps more than ever before, our Nation cannot afford to waste 
precious law enforcement resources or alienate Americans by tolerating 
discriminatory practices. It is past time for Congress and the 
President to enact comprehensive Federal legislation that will end 
racial profiling once and for all.
  In clear language, the End Racial Profiling Act of 2005 bans racial 
profiling. It defines racial profiling in terms that are consistent 
with the Department of Justice's Policy Guidance. But this bill does 
more than prohibit and define racial profiling--it gives law 
enforcement agencies and officers the tools necessary to end the 
harmful practice. For that reason, the End Racial Profiling Act of 2005 
is a pro-law enforcement bill.
  This bill will allow the Justice Department or individuals the 
ability to enforce the prohibition by filing a suit for injunctive 
relief. The bill would also require Federal, State, and local law 
enforcement agencies to adopt policies prohibiting racial profiling, 
implement effective complaint procedures or create independent auditor 
programs, implement disciplinary procedures for officers who engage in 
the practice, and collect data on stops. In addition, it requires the 
Attorney General to report to Congress so Congress and the American 
people can monitor whether the steps outlined in the bill to prevent 
and end racial profiling have been effective.
  Like the bills introduced in past Congresses, this bill also 
authorizes the Attorney General to provide incentive grants to help law 
enforcement comply with the ban on racial profiling, including funds to 
conduct training of police officers or purchase in-car video cameras.
  This year's bill makes one significant improvement to ERPA. In past 
proposals, DOJ grants for State, local, and

[[Page S13805]]

tribal law enforcement agencies were tied to the agency having some 
kind of procedure for handling complaints of racial profiling. This 
year, at the suggestion of experts in the field, the bill requires law 
enforcement agencies to adopt either an administrative complaint 
procedure or an independent auditor program to be eligible for DOJ 
grants. The Attorney General must promulgate regulations that set out 
the types of procedures and audit programs that will be sufficient. We 
believe that the independent auditor option will be preferable for many 
local law enforcement agencies. And such programs have proven to be an 
effective way to discourage racial profiling. Also, under this year's 
bill, the Attorney General is required to conduct a 2-year 
demonstration project to help law enforcement agencies with data 
collection.
  Let me emphasize that local, State, and Federal law enforcement 
agents play a vital role in protecting the public from crime and 
protecting the Nation from terrorism. The vast majority of law 
enforcement agents nationwide discharge their duties professionally and 
without bias and we are all indebted to them for their courage and 
dedication. This bill should not be misinterpreted as a criticism of 
those who put their lives on the line for the rest of us every day. 
Rather, it is a statement that the use of race, ethnicity, religion, or 
national origin in deciding which persons should be subject to traffic 
stops, stops and frisks, questioning, searches, and seizures is wrong 
and ineffective, except where there is specific information linking 
persons of a particular race, ethnicity, religion, or national origin 
to a crime.
  The provisions in this bill will help restore the trust and 
confidence of the communities that our law enforcement have pledged to 
serve and protect. That confidence is crucial to our success in 
stopping crime and in stopping terrorism. The End Racial Profiling Act 
of 2005 is good for law enforcement and good for America.
  I urge the President to make good on his pledge to end racial 
profiling, and I urge my colleagues to join me in supporting the End 
Racial Profiling Act of 2005.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2138

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``End Racial 
     Profiling Act of 2005'' or ``ERPA''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings, purposes, and intent.
Sec. 3. Definitions.

                TITLE I--PROHIBITION OF RACIAL PROFILING

Sec. 101. Prohibition.
Sec. 102. Enforcement.

    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

Sec. 201. Policies to eliminate racial profiling.

TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE, LOCAL, AND 
                 INDIAN TRIBAL LAW ENFORCEMENT AGENCIES

Sec. 301. Policies required for grants.
Sec. 302. Administrative complaint procedure or independent auditor 
              program required for grants.
Sec. 303. Involvement of Attorney General.
Sec. 304. Data collection demonstration project.
Sec. 305. Best practices development grants.
Sec. 306. Authorization of appropriations.

                       TITLE IV--DATA COLLECTION

Sec. 401. Attorney General to issue regulations.
Sec. 402. Publication of data.
Sec. 403. Limitations on publication of data.

   TITLE V--DEPARTMENT OF JUSTICE REGULATIONS AND REPORTS ON RACIAL 
                     PROFILING IN THE UNITED STATES

Sec. 501. Attorney General to issue regulations and reports.

                   TITLE VI--MISCELLANEOUS PROVISIONS

Sec. 601. Severability.
Sec. 602. Savings clause.

     SEC. 2. FINDINGS, PURPOSES, AND INTENT.

       (a) Findings.--Congress finds the following:
       (1) Federal, State, and local law enforcement agents play a 
     vital role in protecting the public from crime and protecting 
     the Nation from terrorism. The vast majority of law 
     enforcement agents nationwide discharge their duties 
     professionally and without bias.
       (2) The use by police officers of race, ethnicity, national 
     origin, or religion in deciding which persons should be 
     subject to traffic stops, stops and frisks, questioning, 
     searches, and seizures is improper.
       (3) In his address to a joint session of Congress on 
     February 27, 2001, President George W. Bush declared that 
     ``racial profiling is wrong and we will end it in America.''. 
     He directed the Attorney General to implement this policy.
       (4) In June 2003, the Department of Justice issued a Policy 
     Guidance regarding racial profiling by Federal law 
     enforcement agencies which stated: ``Racial profiling in law 
     enforcement is not merely wrong, but also ineffective. Race-
     based assumptions in law enforcement perpetuate negative 
     racial stereotypes that are harmful to our rich and diverse 
     democracy, and materially impair our efforts to maintain a 
     fair and just society.''.
       (5) The Department of Justice Guidance is a useful first 
     step, but does not achieve the President's stated goal of 
     ending racial profiling in America, as--
       (A) it does not apply to State and local law enforcement 
     agencies;
       (B) it does not contain a meaningful enforcement mechanism;
       (C) it does not require data collection; and
       (D) it contains an overbroad exception for immigration and 
     national security matters.
       (6) Current efforts by State and local governments to 
     eradicate racial profiling and redress the harms it causes, 
     while also laudable, have been limited in scope and 
     insufficient to address this national problem. Therefore, 
     Federal legislation is needed.
       (7) Statistical evidence from across the country 
     demonstrates that racial profiling is a real and measurable 
     phenomenon.
       (8) As of November 15, 2000, the Department of Justice had 
     14 publicly noticed, ongoing, pattern or practice 
     investigations involving allegations of racial profiling and 
     had filed 5 pattern or practice lawsuits involving 
     allegations of racial profiling, with 4 of those cases 
     resolved through consent decrees.
       (9) A large majority of individuals subjected to stops and 
     other enforcement activities based on race, ethnicity, 
     national origin, or religion are found to be law abiding and 
     therefore racial profiling is not an effective means to 
     uncover criminal activity.
       (10) A 2001 Department of Justice report on citizen-police 
     contacts that occurred in 1999, found that, although Blacks 
     and Hispanics were more likely to be stopped and searched, 
     they were less likely to be in possession of contraband. On 
     average, searches and seizures of Black drivers yielded 
     evidence only 8 percent of the time, searches and seizures of 
     Hispanic drivers yielded evidence only 10 percent of the 
     time, and searches and seizures of White drivers yielded 
     evidence 17 percent of the time.
       (11) A 2000 General Accounting Office report on the 
     activities of the United States Customs Service during fiscal 
     year 1998 found that--
       (A) Black women who were United States citizens were 9 
     times more likely than White women who were United States 
     citizens to be x-rayed after being frisked or patted down;
       (B) Black women who were United States citizens were less 
     than half as likely as White women who were United States 
     citizens to be found carrying contraband; and
       (C) in general, the patterns used to select passengers for 
     more intrusive searches resulted in women and minorities 
     being selected at rates that were not consistent with the 
     rates of finding contraband.
       (12) A 2005 report of the Bureau of Justice Statistics of 
     the Department of Justice on citizen-police contacts that 
     occurred in 2002, found that, although Whites, Blacks, and 
     Hispanics were stopped by the police at the same rate--
       (A) Blacks and Hispanics were much more likely to be 
     arrested than Whites;
       (B) Hispanics were much more likely to be ticketed than 
     Blacks or Whites;
       (C) Blacks and Hispanics were much more likely to report 
     the use or threatened use of force by a police officer;
       (D) Blacks and Hispanics were much more likely to be 
     handcuffed than Whites; and
       (E) Blacks and Hispanics were much more likely to have 
     their vehicles searched than Whites.
       (13) In some jurisdictions, local law enforcement 
     practices, such as ticket and arrest quotas and similar 
     management practices, may have the unintended effect of 
     encouraging law enforcement agents to engage in racial 
     profiling.
       (14) Racial profiling harms individuals subjected to it 
     because they experience fear, anxiety, humiliation, anger, 
     resentment, and cynicism when they are unjustifiably treated 
     as criminal suspects. By discouraging individuals from 
     traveling freely, racial profiling impairs both interstate 
     and intrastate commerce.
       (15) Racial profiling damages law enforcement and the 
     criminal justice system as a whole by undermining public 
     confidence and trust in the police, the courts, and the 
     criminal law.
       (16) In the wake of the September 11, 2001, terrorist 
     attacks, many Arabs, Muslims, Central and South Asians, and 
     Sikhs, as well as other immigrants and Americans of foreign 
     descent, were treated with generalized

[[Page S13806]]

     suspicion and subjected to searches and seizures based upon 
     religion and national origin, without trustworthy information 
     linking specific individuals to criminal conduct. Such 
     profiling has failed to produce tangible benefits, yet has 
     created a fear and mistrust of law enforcement agencies in 
     these communities.
       (17) Racial profiling violates the equal protection clause 
     of the fourteenth amendment to the Constitution of the United 
     States. Using race, ethnicity, religion, or national origin 
     as a proxy for criminal suspicion violates the constitutional 
     requirement that police and other government officials accord 
     to all citizens the equal protection of the law. Batson v. 
     Kentucky, 476 U.S. 79 (1986); Palmore v. Sidoti, 466 U.S. 429 
     (1984).
       (18) Racial profiling is not adequately addressed through 
     suppression motions in criminal cases for 2 reasons. First, 
     the Supreme Court held, in Whren v. United States, 517 U.S. 
     806 (1996), that the racially discriminatory motive of a 
     police officer in making an otherwise valid traffic stop does 
     not warrant the suppression of evidence under the fourth 
     amendment to the Constitution of the United States. Second, 
     since most stops do not result in the discovery of 
     contraband, there is no criminal prosecution and no evidence 
     to suppress.
       (19) A comprehensive national solution is needed to address 
     racial profiling at the Federal, State, and local levels. 
     Federal support is needed to combat racial profiling through 
     specialized training of law enforcement agents, improved 
     management systems, and the acquisition of technology such as 
     in-car video cameras.
       (b) Purposes.--The purposes of this Act are--
       (1) to enforce the constitutional right to equal protection 
     of the laws, pursuant to the fifth amendment and section 5 of 
     the fourteenth amendment to the Constitution of the United 
     States;
       (2) to enforce the constitutional right to protection 
     against unreasonable searches and seizures, pursuant to the 
     fourteenth amendment to the Constitution of the United 
     States;
       (3) to enforce the constitutional right to interstate 
     travel, pursuant to section 2 of article IV of the 
     Constitution of the United States; and
       (4) to regulate interstate commerce, pursuant to clause 3 
     of section 8 of article I of the Constitution of the United 
     States.
       (c) Intent.--This Act is not intended to and should not 
     impede the ability of Federal, State, and local law 
     enforcement to protect the country and its people from any 
     threat, be it foreign or domestic.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Covered program.--The term ``covered program'' means 
     any program or activity funded in whole or in part with funds 
     made available under--
       (A) the Edward Byrne Memorial State and Local Law 
     Enforcement Assistance Program (part E of title I of the 
     Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
     3750 et seq.));
       (B) the Edward Byrne Memorial Justice Assistance Grant 
     Program, as described in appropriations Acts; and
       (C) the ``Cops on the Beat'' program under part Q of title 
     I of the Omnibus Crime Control and Safe Streets Act of 1968 
     (42 U.S.C. 3796dd et seq.), but not including any program, 
     project, or other activity specified in section 1701(d)(8) of 
     that Act (42 U.S.C. 3796dd(d)(8)).
       (2) Governmental body.--The term ``governmental body'' 
     means any department, agency, special purpose district, or 
     other instrumentality of Federal, State, local, or Indian 
     tribal government.
       (3) Indian tribe.--The term ``Indian tribe'' has the same 
     meaning as in section 103 of the Juvenile Justice and 
     Delinquency Prevention Act of 1974 (42 U.S.C. 5603)).
       (4) Law enforcement agency.--The term ``law enforcement 
     agency'' means any Federal, State, local, or Indian tribal 
     public agency engaged in the prevention, detection, or 
     investigation of violations of criminal, immigration, or 
     customs laws.
       (5) Law enforcement agent.--The term ``law enforcement 
     agent'' means any Federal, State, local, or Indian tribal 
     official responsible for enforcing criminal, immigration, or 
     customs laws, including police officers and other agents of a 
     law enforcement agency.
       (6) Racial profiling.--The term ``racial profiling'' means 
     the practice of a law enforcement agent or agency relying, to 
     any degree, on race, ethnicity, national origin, or religion 
     in selecting which individual to subject to routine or 
     spontaneous investigatory activities or in deciding upon the 
     scope and substance of law enforcement activity following the 
     initial investigatory procedure, except when there is 
     trustworthy information, relevant to the locality and 
     timeframe, that links a person of a particular race, 
     ethnicity, national origin, or religion to an identified 
     criminal incident or scheme.
       (7) Routine or spontaneous investigatory activities.--The 
     term ``routine or spontaneous investigatory activities'' 
     means the following activities by a law enforcement agent:
       (A) Interviews.
       (B) Traffic stops.
       (C) Pedestrian stops.
       (D) Frisks and other types of body searches.
       (E) Consensual or nonconsensual searches of the persons or 
     possessions (including vehicles) of motorists or pedestrians.
       (F) Inspections and interviews of entrants into the United 
     States that are more extensive than those customarily carried 
     out.
       (G) Immigration related workplace investigations.
       (H) Such other types of law enforcement encounters compiled 
     by the Federal Bureau of Investigation and the Justice 
     Departments Bureau of Justice Statistics.
       (8) Reasonable request.--The term ``reasonable request'' 
     means all requests for information, except for those that--
       (A) are immaterial to the investigation;
       (B) would result in the unnecessary exposure of personal 
     information; or
       (C) would place a severe burden on the resources of the law 
     enforcement agency given its size.
       (9) Unit of local government.--The term ``unit of local 
     government'' means--
       (A) any city, county, township, town, borough, parish, 
     village, or other general purpose political subdivision of a 
     State;
       (B) any law enforcement district or judicial enforcement 
     district that--
       (i) is established under applicable State law; and
       (ii) has the authority to, in a manner independent of other 
     State entities, establish a budget and impose taxes;
       (C) any Indian tribe that performs law enforcement 
     functions, as determined by the Secretary of the Interior; or
       (D) for the purposes of assistance eligibility, any agency 
     of the government of the District of Columbia or the Federal 
     Government that performs law enforcement functions in and 
     for--
       (i) the District of Columbia; or
       (ii) any Trust Territory of the United States.

                TITLE I--PROHIBITION OF RACIAL PROFILING

     SEC. 101. PROHIBITION.

       No law enforcement agent or law enforcement agency shall 
     engage in racial profiling.

     SEC. 102. ENFORCEMENT.

       (a) Remedy.--The United States, or an individual injured by 
     racial profiling, may enforce this title in a civil action 
     for declaratory or injunctive relief, filed either in a State 
     court of general jurisdiction or in a district court of the 
     United States.
       (b) Parties.--In any action brought under this title, 
     relief may be obtained against--
       (1) any governmental body that employed any law enforcement 
     agent who engaged in racial profiling;
       (2) any agent of such body who engaged in racial profiling; 
     and
       (3) any person with supervisory authority over such agent.
       (c) Nature of Proof.--Proof that the routine or spontaneous 
     investigatory activities of law enforcement agents in a 
     jurisdiction have had a disparate impact on racial, ethnic, 
     or religious minorities shall constitute prima facie evidence 
     of a violation of this title.
       (d) Attorney's Fees.--In any action or proceeding to 
     enforce this title against any governmental unit, the court 
     may allow a prevailing plaintiff, other than the United 
     States, reasonable attorney's fees as part of the costs, and 
     may include expert fees as part of the attorney's fee.

    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

     SEC. 201. POLICIES TO ELIMINATE RACIAL PROFILING.

       (a) In General.--Federal law enforcement agencies shall--
       (1) maintain adequate policies and procedures designed to 
     eliminate racial profiling; and
       (2) cease existing practices that permit racial profiling.
       (b) Policies.--The policies and procedures described in 
     subsection (a)(1) shall include--
       (1) a prohibition on racial profiling;
       (2) training on racial profiling issues as part of Federal 
     law enforcement training;
       (3) the collection of data in accordance with the 
     regulations issued by the Attorney General under section 401;
       (4) procedures for receiving, investigating, and responding 
     meaningfully to complaints alleging racial profiling by law 
     enforcement agents;
       (5) policies requiring that appropriate action be taken 
     when law enforcement agents are determined to have engaged in 
     racial profiling; and
       (6) such other policies or procedures that the Attorney 
     General deems necessary to eliminate racial profiling.

TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE, LOCAL, AND 
                 INDIAN TRIBAL LAW ENFORCEMENT AGENCIES

     SEC. 301. POLICIES REQUIRED FOR GRANTS.

       (a) In General.--An application by a State, a unit of local 
     government, or a State, local, or Indian tribal law 
     enforcement agency for funding under a covered program shall 
     include a certification that such State, unit of local 
     government, or law enforcement agency, and any law 
     enforcement agency to which it will distribute funds--
       (1) maintains adequate policies and procedures designed to 
     eliminate racial profiling; and
       (2) does not engage in any existing practices that permit 
     racial profiling.
       (b) Policies.--The policies and procedures described in 
     subsection (a)(1) shall include--

[[Page S13807]]

       (1) a prohibition on racial profiling;
       (2) training on racial profiling issues as part of law 
     enforcement training;
       (3) the collection of data in accordance with the 
     regulations issued by the Attorney General under section 401;
       (4) procedures for receiving, investigating, and responding 
     meaningfully to complaints alleging racial profiling by law 
     enforcement agents, including procedures that allow a 
     complaint to be made through any of the methods described in 
     section 302(b)(2);
       (5) mechanisms for providing information to the public 
     relating to the administrative complaint procedure or 
     independent auditor program established under section 302;
       (6) policies requiring that appropriate action be taken 
     when law enforcement agents are determined to have engaged in 
     racial profiling; and
       (7) such other policies or procedures that the Attorney 
     General deems necessary to eliminate racial profiling.
       (c) Effective Date.--This section shall take effect 12 
     months after the date of enactment of this Act.

     SEC. 302. ADMINISTRATIVE COMPLAINT PROCEDURE OR INDEPENDENT 
                   AUDITOR PROGRAM REQUIRED FOR GRANTS.

       (a) Establishment of Administrative Complaint Procedure or 
     Independent Auditor Program.--An application by a State or 
     unit of local government for funding under a covered program 
     shall include a certification that the applicant has 
     established and is maintaining, for each law enforcement 
     agency of the applicant, either--
       (1) an administrative complaint procedure that meets the 
     requirements of subsection (b); or
       (2) an independent auditor program that meets the 
     requirements of subsection (c).
       (b) Requirements for Administrative Complaint Procedure.--
     To meet the requirements of this subsection, an 
     administrative complaint procedure shall--
       (1) allow any person who believes there has been a 
     violation of section 101 to file a complaint;
       (2) allow a complaint to be made--
       (A) in writing or orally;
       (B) in person or by mail, telephone, facsimile, or 
     electronic mail; and
       (C) anonymously or through a third party;
       (3) require that the complaint be investigated and heard by 
     an independent review board that--
       (A) is located outside of any law enforcement agency or the 
     law office of the State or unit of local government;
       (B) includes, as at least a majority of its members, 
     individuals who are not employees of the State or unit of 
     local government;
       (C) does not include as a member any individual who is then 
     serving as a law enforcement agent;
       (D) possesses the power to request all relevant information 
     from a law enforcement agency; and
       (E) possesses staff and resources sufficient to perform the 
     duties assigned to the independent review board under this 
     subsection;
       (4) provide that the law enforcement agency shall comply 
     with all reasonable requests for information in a timely 
     manner;
       (5) require the review board to inform the Attorney General 
     when a law enforcement agency fails to comply with a request 
     for information under this subsection;
       (6) provide that a hearing be held, on the record, at the 
     request of the complainant;
       (7) provide for an appropriate remedy, and publication of 
     the results of the inquiry by the review board, if the review 
     board determines that a violation of section 101 has 
     occurred;
       (8) provide that the review board shall dismiss the 
     complaint and publish the results of the inquiry by the 
     review board, if the review board determines that no 
     violation has occurred;
       (9) provide that the review board shall make a final 
     determination with respect to a complaint in a reasonably 
     timely manner;
       (10) provide that a record of all complaints and 
     proceedings be sent to the Civil Rights Division and the 
     Bureau of Justice Statistics of the Department of Justice;
       (11) provide that no published information shall reveal the 
     identity of the law enforcement officer, the complainant, or 
     any other individual who is involved in a detention; and
       (12) otherwise operate in a manner consistent with 
     regulations promulgated by the Attorney General under section 
     303.
       (c) Requirements for Independent Auditor Program.--To meet 
     the requirements of this subsection, an independent auditor 
     program shall--
       (1) provide for the appointment of an independent auditor 
     who is not a sworn officer or employee of a law enforcement 
     agency;
       (2) provide that the independent auditor be given staff and 
     resources sufficient to perform the duties of the independent 
     auditor program under this section;
       (3) provide that the independent auditor be given full 
     access to all relevant documents and data of a law 
     enforcement agency;
       (4) require the independent auditor to inform the Attorney 
     General when a law enforcement agency fails to comply with a 
     request for information under this subsection;
       (5) require the independent auditor to issue a public 
     report each year that--
       (A) addresses the efforts of each law enforcement agency of 
     the State or unit of local government to combat racial 
     profiling; and
       (B) recommends any necessary changes to the policies and 
     procedures of any law enforcement agency;
       (6) require that each law enforcement agency issue a public 
     response to each report issued by the auditor under paragraph 
     (5);
       (7) provide that the independent auditor, upon determining 
     that a law enforcement agency is not in compliance with this 
     Act, shall forward the public report directly to the Attorney 
     General;
       (8) provide that the independent auditor shall engage in 
     community outreach on racial profiling issues; and
       (9) otherwise operate in a manner consistent with 
     regulations promulgated by the Attorney General under section 
     303.
       (d) Local Use of State Complaint Procedure or Independent 
     Auditor Program.--
       (1) In general.--A State shall permit a unit of local 
     government within its borders to use the administrative 
     complaint procedure or independent auditor program it 
     establishes under this section.
       (2) Effect of use.--A unit of local government shall be 
     deemed to have established and maintained an administrative 
     complaint procedure or independent auditor program for 
     purposes of this section if the unit of local government uses 
     the administrative complaint procedure or independent auditor 
     program of either the State in which it is located, or 
     another unit of local government in the State in which it is 
     located.
       (e) Effective Date.--This section shall go into effect 12 
     months after the date of enactment of this Act.

     SEC. 303. INVOLVEMENT OF ATTORNEY GENERAL.

       (a) Regulations.--
       (1) In general.--Not later than 6 months after the date of 
     enactment of this Act and in consultation with stakeholders, 
     including Federal, State, and local law enforcement agencies 
     and community, professional, research, and civil rights 
     organizations, the Attorney General shall issue regulations 
     for the operation of the administrative complaint procedures 
     and independent auditor programs required under subsections 
     (b) and (c) of section 302.
       (2) Guidelines.--The regulations issued under paragraph (1) 
     shall contain guidelines that ensure the fairness, 
     effectiveness, and independence of the administrative 
     complaint procedures and independent auditor programs.
       (b) Noncompliance.--If the Attorney General determines that 
     the recipient of any covered grant is not in compliance with 
     the requirements of section 301 or 302 or the regulations 
     issued under subsection (a), the Attorney General shall 
     withhold, in whole or in part, funds for 1 or more covered 
     grants, until the grantee establishes compliance.
       (c) Private Parties.--The Attorney General shall provide 
     notice and an opportunity for private parties to present 
     evidence to the Attorney General that a grantee is not in 
     compliance with the requirements of this title.

     SEC. 304. DATA COLLECTION DEMONSTRATION PROJECT.

       (a) In General.--The Attorney General shall, through 
     competitive grants or contracts, carry out a 2-year 
     demonstration project for the purpose of developing and 
     implementing data collection on hit rates for stops and 
     searches. The data shall be disaggregated by race, ethnicity, 
     national origin, and religion.
       (b) Competitive Awards.--The Attorney General shall provide 
     not more than 5 grants or contracts to police departments 
     that--
       (1) are not already collecting data voluntarily or 
     otherwise; and
       (2) serve communities where there is a significant 
     concentration of racial or ethnic minorities.
       (c) Required Activities.--Activities carried out under 
     subsection (b) shall include--
       (1) developing a data collection tool;
       (2) training of law enforcement personnel on data 
     collection;
       (3) collecting data on hit rates for stops and searches; 
     and
       (4) reporting the compiled data to the Attorney General.
       (d) Evaluation.--Not later than 3 years after the date of 
     enactment of this Act, the Attorney General shall enter into 
     a contract with an institution of higher education to analyze 
     the data collected by each of the 5 sites funded under this 
     section.
       (e) Authorization of Appropriations.--There are authorized 
     to be appropriated to carry out activities under this 
     section--
       (1) $5,000,000, over a 2-year period for a demonstration 
     project on 5 sites; and
       (2) $500,000 to carry out the evaluation in subsection (d).

     SEC. 305. BEST PRACTICES DEVELOPMENT GRANTS.

       (a) Grant Authorization.--The Attorney General, through the 
     Bureau of Justice Assistance, may make grants to States, law 
     enforcement agencies, and units of local government to 
     develop and implement best practice devices and systems to 
     eliminate racial profiling.
       (b) Use of Funds.--The funds provided under subsection (a) 
     may be used for--
       (1) the development and implementation of training to 
     prevent racial profiling and to encourage more respectful 
     interaction with the public;
       (2) the acquisition and use of technology to facilitate the 
     collection of data regarding routine investigatory activities 
     sufficient to permit an analysis of these activities by race, 
     ethnicity, national origin, and religion;
       (3) the analysis of data collected by law enforcement 
     agencies to determine whether

[[Page S13808]]

     the data indicate the existence of racial profiling;
       (4) the acquisition and use of technology to verify the 
     accuracy of data collection, including in-car video cameras 
     and portable computer systems;
       (5) the development and acquisition of early warning 
     systems and other feedback systems that help identify 
     officers or units of officers engaged in, or at risk of 
     engaging in, racial profiling or other misconduct, including 
     the technology to support such systems;
       (6) the establishment or improvement of systems and 
     procedures for receiving, investigating, and responding 
     meaningfully to complaints alleging racial, ethnic, or 
     religious bias by law enforcement agents;
       (7) the establishment or improvement of management systems 
     to ensure that supervisors are held accountable for the 
     conduct of their subordinates; and
       (8) the establishment and maintenance of an administrative 
     complaint procedure or independent auditor program under 
     section 302.
       (c) Equitable Distribution.--The Attorney General shall 
     ensure that grants under this section are awarded in a manner 
     that reserves an equitable share of funding for small and 
     rural law enforcement agencies.
       (d) Application.--Each State, local law enforcement agency, 
     or unit of local government desiring a grant under this 
     section shall submit an application to the Attorney General 
     at such time, in such manner, and accompanied by such 
     information as the Attorney General may reasonably require.

     SEC. 306. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as are 
     necessary to carry out this title.

                       TITLE IV--DATA COLLECTION

     SEC. 401. ATTORNEY GENERAL TO ISSUE REGULATIONS.

       (a) Regulations.--Not later than 6 months after the 
     enactment of this Act, the Attorney General, in consultation 
     with stakeholders, including Federal, State, and local law 
     enforcement agencies and community, professional, research, 
     and civil rights organizations, shall issue regulations for 
     the collection and compilation of data under sections 201 and 
     301.
       (b) Requirements.--The regulations issued under subsection 
     (a) shall--
       (1) provide for the collection of data on all routine or 
     spontaneous investigatory activities;
       (2) provide that the data collected shall--
       (A) be collected by race, ethnicity, national origin, 
     gender, and religion, as perceived by the law enforcement 
     officer;
       (B) include the date, time, and location of the 
     investigatory activities; and
       (C) include detail sufficient to permit an analysis of 
     whether a law enforcement agency is engaging in racial 
     profiling;
       (3) provide that a standardized form shall be made 
     available to law enforcement agencies for the submission of 
     collected data to the Department of Justice;
       (4) provide that law enforcement agencies shall compile 
     data on the standardized form created under paragraph (3), 
     and submit the form to the Civil Rights Division and the 
     Bureau of Justice Statistics of the Department of Justice;
       (5) provide that law enforcement agencies shall maintain 
     all data collected under this Act for not less than 4 years;
       (6) include guidelines for setting comparative benchmarks, 
     consistent with best practices, against which collected data 
     shall be measured; and
       (7) provide that the Bureau of Justice Statistics shall--
       (A) analyze the data for any statistically significant 
     disparities, including--
       (i) disparities in the percentage of drivers or pedestrians 
     stopped relative to the proportion of the population passing 
     through the neighborhood;
       (ii) disparities in the percentage of false stops relative 
     to the percentage of drivers or pedestrians stopped; and
       (iii) disparities in the frequency of searches performed on 
     minority drivers and the frequency of searches performed on 
     non-minority drivers; and
       (B) not later than 3 years after the date of enactment of 
     this Act, and annually thereafter, prepare a report regarding 
     the findings of the analysis conducted under subparagraph (A) 
     and provide the report to Congress and make the report 
     available to the public, including on a website of the 
     Department of Justice.

     SEC. 402. PUBLICATION OF DATA.

       The Bureau of Justice Statistics shall provide to Congress 
     and make available to the public, together with each annual 
     report described in section 401, the data collected pursuant 
     to this Act.

     SEC. 403. LIMITATIONS ON PUBLICATION OF DATA.

       The name or identifying information of a law enforcement 
     officer, complainant, or any other individual involved in any 
     activity for which data is collected and compiled under this 
     Act shall not be--
       (1) released to the public;
       (2) disclosed to any person, except for such disclosures as 
     are necessary to comply with this Act;
       (3) subject to disclosure under section 552 of title 5, 
     United States Code (commonly know as the Freedom of 
     Information Act).

   TITLE V--DEPARTMENT OF JUSTICE REGULATIONS AND REPORTS ON RACIAL 
                     PROFILING IN THE UNITED STATES

     SEC. 501. ATTORNEY GENERAL TO ISSUE REGULATIONS AND REPORTS.

       (a) Regulations.--In addition to the regulations required 
     under sections 303 and 401, the Attorney General shall issue 
     such other regulations as the Attorney General determines are 
     necessary to implement this Act.
       (b) Reports.--
       (1) In general.--Not later than 2 years after the date of 
     enactment of this Act, and each year thereafter, the Attorney 
     General shall submit to Congress a report on racial profiling 
     by law enforcement agencies.
       (2) Scope.--Each report submitted under paragraph (1) shall 
     include--
       (A) a summary of data collected under sections 201(b)(3) 
     and 301(b)(1)(C) and from any other reliable source of 
     information regarding racial profiling in the United States;
       (B) a discussion of the findings in the most recent report 
     prepared by the Bureau of Justice Statistics under section 
     401(a)(8);
       (C) the status of the adoption and implementation of 
     policies and procedures by Federal law enforcement agencies 
     under section 201;
       (D) the status of the adoption and implementation of 
     policies and procedures by State and local law enforcement 
     agencies under sections 301 and 302; and
       (E) a description of any other policies and procedures that 
     the Attorney General believes would facilitate the 
     elimination of racial profiling.

                   TITLE VI--MISCELLANEOUS PROVISIONS

     SEC. 601. SEVERABILITY.

       If any provision of this Act or the application of such 
     provision to any person or circumstance is held to be 
     unconstitutional, the remainder of this Act and the 
     application of the provisions of this Act to any person or 
     circumstance shall not be affected thereby.

     SEC. 602. SAVINGS CLAUSE.

       Nothing in this Act shall be construed to limit legal or 
     administrative remedies under section 1979 of the Revised 
     Statutes of the United States (42 U.S.C. 1983), section 
     210401 of the Violent Crime Control and Law Enforcement Act 
     of 1994 (42 U.S.C. 14141), the Omnibus Crime Control and Safe 
     Streets Act of 1968 (42 U.S.C. 3701 et seq.), and title VI of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

  Mr. CORZINE. Mr. President, I rise to in support of the End Racial 
Profiling Act a bill being introduced today by Senators Feingold, Obama 
and myself. This bill addresses an issue that is critical to the people 
of my home State of New Jersey and to all Americans.
  I start by recognizing two of my colleagues with whom I have been 
working to address the problem of racial profiling. Senator Russ 
Feingold has been a tremendous leader on this issue he held the first 
Senate hearings on racial profiling in 2001, and he and his staff have 
worked tirelessly to elevate the importance of this issue as a matter 
of civil rights. I also want to recognize Senator Obama he has been a 
constant champion of efforts to combat racial profiling. Senator Obama 
took the lead in writing one of the Nation's most innovative pieces of 
legislation on the collection of racial profiling data when he was in 
the Illinois State Senate, and he has been equally committed to the 
issue since joining the U.S. Senate. Both Senators Feingold and Obama 
have worked tirelessly to make the bill we are introducing today a 
reality.
  Racial profiling is anathema to the principles on which our Nation 
was founded, sowing division within our communities and striking at the 
heart of our democratic values.
  Stopping people on our highways, our streets, and at our borders 
because of the color of their skin is simply wrong, and it is 
incompatible with the fundamental American belief in fairness, justice, 
and equal protection under the law.
  Every American is entitled to equal protection under the law. Our 
Constitution tolerates nothing less, and we should demand nothing less.
  There is no equal protection there is no equal justice if law 
enforcement agencies engage in policies and practices that are premised 
on a theory that the way to stop crime is to go after minorities on the 
hunch that they are more likely to be criminals.
  Let me add that not only is racial profiling wrong, it is simply not 
an effective law enforcement tool. There is no evidence that stopping 
people of color adds up to catching the ``bad guys.''
  In fact, empirical evidence shows that singling out Black motorists 
or Hispanic motorists for stops and searches doesn't lead to a higher 
percentage of arrests because minority motorists are no more likely to 
break the law than white motorists.
  What is more, the practice of racial profiling actually undermines 
public

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safety, by contributing to the perception in minority neighborhoods 
that the criminal justice system is unfair, and eroding the trust 
between communities and the police that is so essential to effective 
law enforcement.
  Nonetheless, racial profiling persists.
  Unfortunately, the practice is real and widespread throughout the 
Nation.
  A 2005 report of the Department of Justice found that Blacks and 
Hispanics throughout the Nation were much more likely to be handcuffed 
and have their cars searched by law enforcement during traffic stops, 
even though they were less likely to be harboring contraband.
  A Government Accountability Office report on the U.S. Customs Service 
released in March 2000 found that Black, Asian, and Hispanic women were 
four to nine times more likely than White women to be subjected to 
xrays after being frisked or patted down.
  But on the basis of the xray results, Black women were less than half 
as likely as White women to be found carrying contraband.
  This is law enforcement by hunch. No warrants. No probable cause.
  And what is the hunch based on?
  Race, ethnicity, national origin, or religion plain and simple. And 
that is plain wrong.
  Now--we know that many law enforcement agencies, including some from 
my home state, have acknowledged the danger of the practice and have 
taken steps to combat it. I commend them for their efforts.
  That said, it is clear that this is a national problem that requires 
a Federal response applicable to all.
  Our legislation is a strong but measured response to the destructive 
problem of racial profiling.
  First, it defines racial profiling and bans it.
  Racial profiling is defined in the bill to include routine or 
spontaneous investigatory stops based on race, ethnicity, national 
origin, or religion. This conduct is wrong and must be stopped. The 
President and the Attorney General have said just that. The legislation 
would be the first Federal statute to prohibit this practice at the 
Federal, State, and local level.
  To guarantee that the statute does not impede legitimate and 
responsible policing, the statute is careful to exclude from the ban on 
racial profiling those cases where there is trustworthy information 
that links a person of a particular race, ethnicity, national origin, 
or religion to a particular crime.
  Our bill also gives the ban on racial profiling teeth by allowing the 
Department of Justice or an individual harmed by racial profiling to 
obtain declaratory or injunctive relief from a court if the Government 
does not take steps to end racial profiling.
  Next, the statute will require the collection of statistical data to 
measure whether progress is being made. By collecting this data we will 
get a fair and honest picture of law enforcement at work. And we will 
provide law enforcement agencies with the information they need to 
detect problems early on.
  Our bill directs the Attorney General to develop standards for data 
collection and instructs the Attorney General to consult with law 
enforcement and other stakeholders in developing those standards. It 
also specifically directs the Attorney General to establish standards 
for setting benchmarks against which the collected data should be 
measured so that no data is taken out of context, as some in law 
enforcement rightly fear. Finally, we will require the Bureau of 
Justice Statistics in the Department of Justice to analyze these 
statistics on an annual basis so that the Nation can gauge the success 
of its efforts to combat this corrosive practice.
  Finally, we will encourage a change in law enforcement culture 
through the use of the carrot and the stick.
  First, the carrot: We recognize that law enforcement shouldn't be 
expected to do this alone. So this bill says that if you do the job 
right fairly and equitably you are eligible to receive development 
grants to help pay for the following: Advanced training programs; 
computer technology to help collect data and statistics; video cameras 
and recorders for patrol cars; establishing or improving systems for 
handling complaints alleging ethnic or racial profiling; and 
establishing management systems to ensure that supervisors are held 
accountable for the conduct of subordinates.
  Further, we will direct the Attorney General to conduct a 
demonstration project that will give grants to police departments to 
help them collect racial profiling data and then work with an 
institution of higher learning to analyze the collect data.
  But if law enforcement agencies don't do the job right, there is also 
the stick. Our bill will require law enforcement agencies to put in 
place procedures to receive and investigate complaints alleging racial 
profiling. The bill gives the law enforcement agencies the flexibility 
and the options to adopt the procedures that best fit the needs of 
their local communities. Further, the bill permits localities to 
cooperate with other communities and with the State in which they are 
located to develop shared procedures to invest racial profiling 
problems in the community.
  If State and local law enforcement agencies refuse to implement 
procedures to end and prevent profiling, they will be subject to a loss 
of Federal law enforcement funds.
  Let me be clear this bill is not about blaming law enforcement. Most 
law enforcement officers discharge their duties responsibly. But 
stopping people based solely on race, ethnicity, national origin, or 
religion will be outlawed.
  We have introduced two bills in the last 5 years to eliminate racial 
profiling. The President of the United States has condemned racial 
profiling in his State of the Union address. There is a broad and 
bipartisan consensus that it is an unfair and destructive practice. And 
yet we have failed to act.
  In the meantime, racial profiling has continued to breed humiliation, 
anger, resentment, and cynicism throughout this country.
  It has weakened respect for the law by everyone, not just those 
offended.
  Simply put it is wrong and we must finally end it. Today we pledge to 
do just that to define it, to ban it, and to enforce this ban.
                                 ______