The End Racial Profiling Act of 2010
Before 9/11, polls showed that Americans of all races, ethnicities, and national origins considered racial profiling a widespread and unacceptable practice.132 On June 6, 2001, Sen. Russell Feingold, D. Wisc., and Rep. John Conyers, D. Mich., introduced the End Racial Profiling Act of 2001 (ERPA 2001) into the 107th Congress.133 The bill had bipartisan support, and the enactment of a comprehensive federal antiracial profiling statute seemed imminent. On 9/11, the consensus evaporated, and the Bush administration took no action to encourage Congress to pass ERPA 2001. The suggestion—which, as this report indicates, is fundamentally wrong—that racial profiling could not be addressed without compromising the counterterrorism effort, prevented any rational discussion of ending the practice, not only in that context, but in the street-level crime and immigration contexts as well. End Racial Profiling Acts were introduced into Congress in 2004, 2005, 2007, and 2009,134 but Congress failed to enact legislation to ban the practice.
Looking toward the introduction of another End Racial Profiling Act, the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the U.S. House of Representatives Committee on the Judiciary held a hearing in June 2010 on "Ending Racial Profiling: Necessary for Public Safety and the Protection of Civil Rights." Shortly thereafter, on July 15, Conyers, chair of the Judiciary Committee, introduced into the 111th Congress H.R. 5748—the End Racial Profiling Act of 2010 (ERPA 2010).135 The 111th Congress took no action on ERPA 2010, and it died with the adjournment of that Congress on December 22, 2010. But ERPA 2010 warrants continued attention because it contained all of the elements that are necessary for an effective federal anti-racial profiling statute and provides a template for action by the 112th Congress.
Those who advocate for a federal statute to end racial profiling agree that the centerpiece of any such statute should be an explicit and unqualified prohibition against use of the practice in all contexts, including the street-level crime, counterterrorism, and immigration law enforcement context. They further agree that, for purposes of this prohibition, the term "racial profiling" should be broadly defined to encompass at least race, ethnicity, national origin, and religion, and that law enforcement authorities should be prohibited from relying on these factors, to any extent, in deciding which individuals to investigate or subject to other law enforcement activities. There is agreement, moreover, that the prohibition should apply to law enforcement activities at the federal, state, and local levels, and that there should be a "private cause of action," which would allow those who have been the victims of racial profiling to file a lawsuit to enforce the prohibition. The centerpiece of ERPA 2010 was a prohibition against racial profiling that met all of these criteria.
The first section of Title I of ERPA 2010 (PROHIBITION) provided as follows:
No law enforcement agent or law enforcement agency shall engage in racial profiling.
The statutory definitions of the terms used in the foregoing provision confirmed the broad reach of the prohibition. Thus, "law enforcement agency" meant
any federal, state, local, or Indian tribal public agency engaged in the prevention, detection, or investigation of violations of criminal, immigration, or customs laws.
And the definition of "racial profiling" was essentially the same as that used in this report. The term was defined to mean:
[T]he 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.136
With regard to remedy, ERPA 2010 provided that the United States or "an individual injured by racial profiling" may enforce the prohibition by filing an action "for declaratory or injunctive relief" in state or federal court against "any governmental body that employed any law enforcement agent" who engaged in racial profiling, the law enforcement agent in question, and anyone with supervisory authority over the agent. An individual plaintiff who prevailed in such a lawsuit could recover reasonable attorneys' fees.137
Although the relief available to an individual plaintiff under ERPA 2010 did not include monetary damages, the limitation to declaratory or injunctive relief must be read in conjunction with the bill's Savings Clause.138 This provision preserved for plaintiffs all "legal or administrative remedies," including damages, which they may have under Section 1983, Title VI of the Civil Rights Act of 1964, and certain other federal statutes.
In addition to its broad and unqualified prohibition against all forms of racial profiling, ERPA 2010 was responsive to other recommendations made by proponents of a federal statute, both at the June 2010 hearing before the subcommittee of the House Judiciary Committee and in other forums. Thus, for example, in his June 2010 testimony, Hilary O. Shelton, director of the NAACP's Washington Bureau and senior vice president for advocacy and policy, outlined the provisions that he believed should be included in a federal anti-racial profiling statute. Emphasizing first and foremost the "need for a clear definition of what is racial profiling as well as an unambiguous and unequivocal ban on its use by all law enforcement officials," Shelton continued as follows:
Second, we need data collection to truly assess the extent of the problem. In simple terms, "in order to fix it, you must first measure it." The only way to move the discussion about racial profiling from rhetoric and accusation to a more rational dialogue and appropriate enforcement strategies is to collect the information that will either allay community concerns about the activities of the police or help communities ascertain the scope and magnitude of the problem. Furthermore, implementing a data collection system also sends a clear message to the entire police community, as well as to the larger community, that racial profiling is inconsistent with effective policing and equal protection.
If it is done right, data collection will also lead to the third element of an effective anti-racial profiling agenda: training. Law enforcement officials at all levels, from the unit commander to the desk sergeant to the cop-on-the-beat and of all jurisdictions, from federal agents to state and local police, should all be required to be able to not only identify racial profiling, but also to know of its short-comings and be able to put an end to it while increasing their effectiveness in protecting our communities and our Nation.139
Shelton is not, of course, alone in recommending that a federal statute provide for data collection and training of law enforcement authorities at all levels. Similar recommendations were made by others who testified at the June 2010 hearing;140 are included in a 2003 report by The Leadership Conference Education Fund and the 2009 report by the ACLU/Rights Working Group;141 and provisions dealing with these matters were included in predecessor versions of ERPA 2010 tracing back to 2001.142
ERPA 2010 required federal law enforcement agencies to "include ... training on racial profiling issues as part of federal law enforcement training," and provided for the "collection of data in accordance with the regulations issued by the Attorney General under [a later section of the bill]."143 Similar requirements were imposed on state, local, and Indian tribal law enforcement authorities as a condition for receiving federal funding under specified federal criminal justice programs, and of eligibility for competitive law enforcement grants or contracts.144
Another recommendation that has consistently been put forth by proponents of a federal statute to end racial profiling is that the statute require law enforcement authorities to establish administrative complaint procedures for victims of racial profiling.145 ERPA 2010 also responded to this recommendation: it required federal law enforcement authorities to establish "procedures for receiving, investigating, and responding meaningfully to complaints alleging racial profiling by [federal] law enforcement agents,"146 and imposed a similar requirement on state, local, and Indian tribal law enforcement agencies as a condition for receiving specified federal program and grant funding.147
In sum, ERPA 2010 addressed the major concerns about racial profiling expressed in this report, and would have gone a long way toward ending the practice. Accordingly, ERPA 2010 provides an appropriate model for an anti-racial profiling act in the 112th Congress.