Conclusion and Recommendations

As this report demonstrates, racial profiling is a pervasive nationwide practice: federal, state, and local law enforcement authorities repeatedly stop, detain, question, and otherwise target individuals based on their race, ethnicity, national origin, or religion. As this report also demonstrates, racial profiling is in all contexts an unjust and ineffective method of law enforcement.

In early 2001, a consensus had emerged on the need to end racial profiling in America, but in the aftermath of the 9/11 terrorist attacks many people, both in and out of government, re-evaluated their views, and the consensus evaporated. It is now time to establish a new national anti-racial profiling consensus, and do what is necessary to stop the use of the practice. Toward that end, we offer the following recommendations, addressed to Congress, the president, Executive Branch agencies, and civil and human rights organizations.

Congress

The 112th Congress should enact an anti-racial profiling statute modeled after ERPA 2010. Such a statute would address the major concerns about racial profiling expressed in this report, and go a long way toward ending the practice at the federal, state, and local levels.

The President

President Obama should urge Congress to enact an anti-racial profiling statute modeled after ERPA 2010. Consistent with his campaign promises, the president should publicly support such a statute, and make its enactment one of his administration's highest legislative priorities.
Pending enactment by Congress of an anti-racial profiling statute, the president should issue an executive order that prohibits federal law enforcement authorities from engaging in racial profiling or sanctioning the use of the practice by state or local law enforcement authorities in connection with any federal program. For purposes of this prohibition, the executive order should use the definition of "racial profiling" in Sec. 2(6) of ERPA 2010 (and in this report), and incorporate the provisions of Title II, Section 201, of ERPA 2010 regarding the training of federal law enforcement authorities, the collection of data, and the procedures for receiving, investigating, and responding to complaints alleging racial profiling.

Executive Branch Agencies

The U.S. Department of Justice (DOJ) should revise its June 2003 "Guidance Regarding the Use of Race by Federal Law Enforcement Agencies" to clarify ambiguities, close loopholes, and eliminate provisions that allow for any form of racial profiling. Specifically, the revised guidance should add national origin and religion as prohibited bases for profiling; eliminate the national and border security exceptions; explicitly state that the ban on profiling applies to intelligence activities carried out by law enforcement authorities subject to the guidance; establish enforceable standards that include accountability mechanisms for noncompliance; and be made applicable to all state and local law enforcement authorities as a condition for the receipt of appropriate federal funding.
DOJ should take the position that it has exclusive jurisdiction to enforce federal immigration laws. Consistent with that position, DOJ’s Office of Legal Counsel should immediately rescind its 2002 opinion that state and local law enforcement authorities have "inherent authority" to enforce federal immigration laws, and issue a new opinion declaring that state and local law enforcement authorities may enforce federal immigration laws only if the authority to do so has been expressly delegated to them by the federal government.
The Civil Rights Division of DOJ should make the remediation of racial profiling a priority. The activities of the Civil Rights Division in the 1990s were critical to exposing the widespread existence of racial profiling. The division's continued involvement will be critical to ending the practice—both pursuant to Sec. 14141 of the Violent Crime Control and Law Enforcement Act of 1994 and other federal laws prior to the enactment of a federal anti-racial profiling statute, and in ensuring that any federal anti-racial profiling statute that is enacted by Congress is properly implemented.
The U.S. Department of Homeland Security (DHS) should terminate the 287(g) program (and Congress should repeal the statutory basis for the program—i.e., Section 287(g) of the Immigration and Nationality Act).
DHS should suspend operation of the Criminal Alien Program, the Secure Communities program, and other federal programs pursuant to which authority to engage in the enforcement of federal immigration laws has been delegated to state and local law enforcement authorities until a panel of independent experts reviews their operation and makes such recommendations as it deems appropriate to ensure that the programs do not involve racial profiling. Unless the president directs otherwise, the programs in question should remain suspended until the panel determines that its recommendations have been properly implemented.
DHS should terminate the National Security Entry- Exit Registration System, and provide appropriate retroactive relief to individuals who were unjustly harmed by the operation of the program.
Operation Front Line and other federal counterterrorism programs should be reviewed by a panel of independent experts. The panel should be charged with the task of making such recommendations as it deems appropriate to ensure that the programs do not involve racial profiling. Unless the president directs otherwise, DHS should implement any such recommendations as expeditiously as possible.

Civil and Human Rights Organizations

Civil and human rights organizations should take the lead in calling for prompt introduction into the 112th Congress of an anti-racial profiling statute modeled after ERPA 2010, and should push for its enactment.
As indicated in this report, racial profiling is often predicated on the mistaken belief that the practice will make us safer and more secure. Civil and human rights organizations should undertake a public education campaign to refute the erroneous assumptions underlying racial profiling; demonstrate the devastating impact that racial profiling has on individuals, families, and entire communities that are subject to the practice; and explain why racial profiling is in all contexts an ineffective and counterproductive method of law enforcement that makes us all not more, but less safe and secure.

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