The Reality of Racial Profiling
The U.S. Supreme Court has held that racial profiling violates the constitutional requirement that all persons be accorded equal protection of the law.19 The "Guidance Regarding the Use of Race By Federal Law Enforcement Agencies" that was issued by the U.S. Department of Justice in 2003 states:
"Racial profiling" at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity.
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.20
Notwithstanding the fact that racial profiling is unconstitutional, and despite the emphatic declaration from the federal government that the practice is "invidious," "wrong," "ineffective," and "harmful to our rich and diverse democracy," quantitative and qualitative evidence collected at the federal, state, and local levels confirms that racial profiling persists. Moreover, as the evidence also shows, racial profiling is often encouraged by misguided federal programs and policies that incentivize law enforcement authorities to engage in the practice.
In this section of the report, we consider the use of racial profiling in each of the three contexts referenced above, i.e., street-level crime, counterterrorism, and immigration law enforcement. To be sure, this breakdown is to some extent artificial, and there are obvious points of overlap among the contexts—as, for example, when Hispanics who are targeted by law enforcement authorities for engaging in drug trafficking or other street-level crimes are also profiled as suspected undocumented immigrants, or when Arabs or Muslims who are targeted as potential terrorists are also questioned about whether they are in the country without authorization. Despite these and other points of overlap, it is helpful to discuss racial profiling in each of the three contexts separately inasmuch as this allows for a more context-specific analysis.
A. Street-Level Crime
Empirical evidence confirms the existence of racial profiling on America's roadways. At the national level, the U.S. Department of Labor's Bureau of Justice Statistics reports that for the year 2005, the most recent data available, "[p]olice actions taken during a traffic stop were not uniform across racial and ethnic categories." "Black drivers (4.5%) were twice as likely as White drivers (2.1%) to be arrested during a traffic stop, while Hispanic drivers (65%) were more likely than White (56.2%) or Black (55.8%) drivers to receive a ticket. In addition, Whites (9.7%) were more likely than Hispanics (5.9%) to receive a written warning, while Whites (18.6%) were more likely than Blacks (13.7%) to be verbally warned by police." When it came to searching minority motorists after a traffic stop, "Black (9.5%) and Hispanic (8.8%) motorists stopped by police were searched at higher rates than Whites (3.6%)." The "likelihood of experiencing a search did not change for Whites, Blacks, or Hispanics from 2002 to 2005."21
Quantitative evidence reported in several states confirms this nationwide data:
- A study in Arizona shows that during 2006-2007, the state highway patrol was significantly more likely to stop African Americans and Hispanics than Whites on all the highways studied, while Native Americans and persons of Middle Eastern descent were more likely to be stopped on nearly all the highways studied. The highway patrol was 3.5 times more likely to search a stopped Native American than a White, and 2.5 times more likely to search a stopped African American or Hispanic.22
The Arizona study also shows that racial profiling is counterproductive and a misallocation of scarce law enforcement resources. Although Native Americans, Hispanics, Middle Easterners, and Asians were far more likely to be stopped and searched than Whites on Arizona's highways, Whites who were searched were more likely to be transporting drugs, guns, or other contraband. While African Americans were twice as likely as Whites to be stopped and searched, the rates of contraband seizures for the two groups were comparable.23
- A February 2009 study of traffic stops and searches in West Virginia found a similar pattern of racial profiling. The data reveal that African-American motorists were 1.64 times more likely to be stopped than White drivers. Hispanics were 1.48 times more likely to be stopped. After the traffic stop, non-Whites were more likely to be arrested, yet police in West Virginia obtained a significantly higher contraband hit rate for White drivers than minorities.24
- In Minnesota, a statewide study of racial profiling during 2002 found that African-American, Hispanic, and Native American drivers were all stopped and searched more often than Whites, yet contraband was found more frequently in searches of White drivers’ cars. Had all drivers been stopped at the same rates in the 65 local jurisdictions reporting data, 22,500 more Whites would have been stopped, while 18,800 fewer African Americans and 5,800 fewer Hispanics would have been stopped.25
- In Illinois, data collected after the 2003 passage of the Illinois Traffic Stops Statistics Act, sponsored by then-Illinois State Senator Barack Obama, shows similar patterns of racial profiling by law enforcement authorities. The number of consent searches after traffic stops of African-American and Hispanic motorists was more than double that of Whites. The consent searches found White motorists were twice as likely to have contraband.26
- A 2005 study analyzing data gathered statewide in Texas reveals disproportionate traffic stops and searches of African Americans and Hispanics, even though law enforcement authorities were more likely to find contraband on Whites.27
At the local level, studies of data collected in Sacramento County, California,28 and DuPage County, Illinois,29 also report disproportionate traffic stops and searches of African Americans and Hispanics.
Although the foregoing studies confirm the reality of the "Driving While Black or Brown" phenomenon, statistical analysis does not reflect the human cost of racial profiling. For that purpose, we offer the following examples:
- In Newark, New Jersey, on the night of June 14, 2008, two youths aged 15 and 13 were riding in a car driven by their football coach, Kelvin Lamar James. All were African American. Newark police officers stopped their car in the rain, pulled the three out, and held them at gunpoint while the car was searched. James stated that the search violated his rights. One officer replied in abusive language that the three African Americans didn’t have rights and that the police "had no rules." The search of the car found no contraband, only football equipment.30
- In May 2009, in Hinds County, Mississippi, Hiran Medina, a Hispanic, was pulled over for crossing the center line of the highway, one of several potentially subjective pretexts for "Driving While Black or Brown" traffic stops. Medina consented to the county deputy's request to search the vehicle. Upon discovering $5,000 in cash in the car, the deputy handcuffed Medina, seized the money, and issued Medina a forfeiture notice that would require Medina to sue the county for the return of the money within 30 days or forfeit the cash to the Sheriff's Department. Eventually, after much laughter on the scene among the gathered deputies, Medina was released but his cash was kept because, they claimed, it smelled of marijuana, even though no drugs were found in Medina's vehicle. Only after Medina retained the American Civil Liberties Union, which threatened a lawsuit, did he get his money back.31
Just as minority motorists are subject to racial profiling, so too are minority pedestrians. This is especially true following the adoption of community-based policing strategies that often provide street-level law enforcement authorities with wide discretion to "clean up" the communities they patrol. Professor Angela Davis has noted, "[t]he practical effect of this deference [to law enforcement discretion] is the assimilation of police officers' subjective beliefs, biases, hunches, and prejudices into law."32 As is the case in the "Driving while Black or Brown" motorist context, such discretion in the pedestrian context is often exercised to racially profile minorities who are perceived to pose a threat to public safety even if they have done nothing wrong. Harvard Law School Professor Charles Ogletree, who is African American, has stated, "If I'm dressed in a knit cap and hooded jacket, I'm probable cause."33 These anecdotal assessments are supported by statistical analysis.
In 2008, as the result of a discovery request in Floyd v. City of New York, a lawsuit filed against the New York City Police Department ("NYPD") alleging racial profiling and suspicion-less stops-and-frisks against law-abiding New York City residents,34 the Center for Constitutional Rights received and analyzed data collected by the NYPD for the years 2005 to mid-2008. The Center found that:
- In 2005, the NYPD made fewer than 400,000 stops in comparison to a projected more than 500,000 stops in 2008. Over a period of three and one half years, the NYPD has initiated nearly 1.6 million stops of New Yorkers.
- From 2005 to mid-2008, approximately 80 percent of total stops made were of Blacks and Latinos, who comprise 25 percent and 28 percent of New York City’s total population, respectively. During this same time period, only about 10 percent of stops were of Whites, who comprise 44 percent of the city’s population.
- From 2005 to mid-2008, Whites comprised 8 percent and Blacks comprised 85 percent of all individuals frisked by the NYPD. In addition, 34 percent of Whites stopped during this time period were frisked, while 50 percent of Blacks and Latinos stopped were frisked.
- A significant number of stops resulted in the use of physical force by the NYPD. Of those stops, a disproportionate number of Blacks and Latinos had physical force used against them. Between 2005 and mid-2008, 17 percent of Whites, compared to 24 percent of Blacks and Latinos, had physical force used against them during NYPD-initiated encounters.
- Of the cumulative number of stops made during the three and one-half year period, only 2.6 percent resulted in the discovery of a weapon or contraband. Although rates of contraband yield were minute across all racial groups, stops made of Whites proved to be slightly more likely to yield contraband.
- Arrest and summons rates for persons stopped between 2005 and mid-2008 were low for all racial groups, with between 4 and 6 percent of all NYPD-initiated stops resulting in arrests and 6 and 7 percent resulting in summons being issued during this period.35
The Center concluded that "data provided by the NYPD plainly demonstrate that Black and Latino New Yorkers have a greater likelihood of being stopped-and-frisked by NYPD officers at a rate significantly disproportionate to that of White New Yorkers. That NYPD officers use physical force during stops of Blacks and Latinos at an exceedingly disproportionate rate compared to Whites who are stopped, and that this disparity exists despite corresponding rates of arrest and weapons or contraband yield across racial lines, further supports claims that the NYPD is engaged in racially biased stop-and-frisk practices."36
Empirical evidence from Los Angeles obtained as the result of a 2001 federal consent decree between the U.S. Department of Justice and the Los Angeles Police Department ("LAPD") that sought to remedy past racial profiling and other discriminatory practices against minorities tells a similar story. During the period from July 2003 to June 2004, "after controlling for violent and property crime rates in specific LAPD reporting districts, as well as a range of other variables," the researchers found that:
- Per 10,000 residents, the Black stop rate was 3,400 stops higher than the White stop rate, and the Hispanic stop rate was almost 360 stops higher.
- Relative to stopped Whites, stopped Blacks were 127 percent more likely and stopped Hispanics were 43 percent more likely to be frisked.
- Relative to stopped Whites, stopped Blacks were 76 percent more likely and stopped Hispanics were 16 percent more likely to be searched.
- Relative to stopped Whites, stopped Blacks were 29 percent more likely and stopped Hispanics were 32 percent more likely to be arrested.
- Frisked Blacks were 42.3 percent less likely to be found with a weapon than frisked Whites, and frisked Hispanics were 31.8 percent less likely to have a weapon than frisked Whites.
- Consensual searches of Blacks were 37 percent less likely to uncover weapons, 23.7 percent less likely to uncover drugs, and 25.4 percent less likely to uncover any other type of contraband than consensual searches of Whites.
- Consensual searches of Hispanics were 32.8 percent less likely to uncover weapons, 34.3 percent less likely to uncover drugs, and 12.3 percent less likely to uncover any other type of contraband than consensual searches of Whites.37
The researchers concluded:
It is implausible that higher frisk and search rates are justified by higher minority criminality, when these frisks and searches are substantially less likely to uncover weapons, drugs or other types of contraband. We also find that the black arrest disparity was 9 percentage points lower when the stopping officer was black than when the stopping officer was not black. Similarly, the Hispanic arrest disparity was 7 percentage points lower when the stopping officer was Hispanic than when the stopping officer was a non-Hispanic white. Taken as a whole, these results justify further investigation and corrective action.38
Despite this evidence of continued racial profiling by the LAPD—and the researchers' conclusion that "these results justify further investigation and corrective action"—a federal court in July 2009 lifted the consent decree over the LAPD.39
Another example of racial profiling in the stop-and-frisk context is provided by Jackson, Tennessee. In Jackson, police conduct what they term "field interviews" in which they stop, interview, and may photograph pedestrians and bystanders when an officer has "reasonable suspicion to believe a crime has occurred [or] is about to occur or is investigating a crime." A review of "field cards" generated by the field interviews indicates that 70 percent were for African Americans. The population of Jackson is only 42 percent African American. One African-American college student reported that police in Jackson stopped him on the street while he was walking to his grandmother's house. They then followed him onto the porch of her home where they conducted field interviews of him and five other African-American visitors, and threatened to arrest them if they did not cooperate.40
The use of racial profiling in connection with entry into the U.S. in the counterterrorism and immigration contexts is discussed later in this report, but the practice has long been commonplace in the war on drugs at the nation's border crossings and airports. For example, drug curier profiles used by the U.S. Customs Service regularly include race as a factor in guiding law enforcement discretion.41 The case of Curtis Blackwell, a long haul trucker, who tried to cross from Mexico into the U.S. at a border crossing in Lordsburg, New Mexico, is illustrative.
On August 15, 2008, Blackwell, an African American, was driving his truck across the border when he was stopped and searched by officers of the New Mexico State Police. The officers accused Blackwell of being under the influence of alcohol or narcotics, despite the fact that he passed every sobriety and drug test administered. His truck was impounded for 24 hours until it was allowed entry into the U.S. Evidence suggests other African-American truckers entering the U.S. from Mexico at this point of entry have also been detained without reasonable suspicion.42
In October 2003, in another case involving an African American who may have "fit" the drug courier profile, state police troopers at Boston’s Logan Airport stopped attorney King Downing as he talked on his cell phone. According to Downing, police demanded to see his identification and travel documents. Downing knew he was under no obligation to provide the documents and declined to do so. Police first ordered him to leave the airport, but then stopped him from leaving, surrounded him with officers, and placed him under arrest. At that point, Downing agreed to provide his identification and travel documents. After a 40-minute detention, he was released. Four years later, in a lawsuit brought by Downing, a jury found the police had unlawfully detained him without reasonable suspicion.43
The 9/11 terrorist attacks on the World Trade Center and the Pentagon were carried out by Arabs from Muslim countries. In response to the attacks, the federal government immediately engaged in a sweeping counterterrorism campaign focused on Arabs and Muslims, and in some cases on persons who were perceived to be, but in fact were not, Arabs or Muslims, such as Sikhs and other South Asians. That focus continues to this day. The federal government claims that its anti-terrorism efforts do not amount to racial profiling, but the singling out for questioning and detention of Arabs and Muslims in the United States, as well as selective application of the immigration laws to nationals of Arab and Muslim countries, belie this claim.
A prime example of a federal program that encourages racial profiling is the National Security Entry-Exit Registration System (NSEERS), implemented in 2002.44 NSEERS requires certain individuals from predominantly Muslim countries to register with the federal government, as well as to be fingerprinted, photographed, and interrogated. A report issued in 2009 by the American Civil Liberties Union (ACLU) and the Rights Working Group had this to say about NSEERS:
More than seven years after its implementation, NSEERS continues to impact the lives of those individuals and communities subjected to it. It has led to the prevention of naturalization and to the deportation of individuals who failed to register, either because they were unaware of the registration requirement or because they were afraid to register after hearing stories of interrogations, detentions and deportations of friends, family and community members. As a result, well-intentioned individuals who failed to comply with NSEERS due to a lack of knowledge or fear have been denied "adjustment of status" (green cards), and in some cases have been placed in removal proceedings for willfully" failing to register."45
Despite NSEERS' near explicit profiling based on religion and national origin, federal courts have held that the program does not violate the Equal Protection Clause of the Constitution, and that those forced to participate in the program have not suffered violations of their rights under the Fourth or Fifth Amendments to the U.S. Constitution, which protect against unreasonable search and seizure and guarantee due process, respectively.46
Another example of a federal program that involves racial profiling is Operation Front Line (OFL). The stated purpose of OFL,47 which was instituted just prior to the November 2004 presidential election, is to "detect, deter, and disrupt terror operations."48 OFL is a covert program, the existence of which was discovered through a Freedom of Information Act lawsuit filed by the American-Arab Anti-Discrimination Committee and the Yale Law School National Litigation Project.49
According to the 2009 ACLU/Rights Working Group report, data regarding OFL obtained from the Department of Homeland Security show that:
Lists of individuals who registered under NSEERS were apparently used to select candidates for investigation in OFL.51 Inasmuch as the overwhelming majority of those selected were Muslims, OFL is a clear example of a federal program that involves racial profiling. Moreover, because OFL has resulted in no terror-related convictions, the program is also a clear example of how racial profiling uses up valuable law enforcement resources yet fails to make our nation safer.52
Although Arabs and Muslims, and those presumed to be Arabs or Muslims based on their appearance, have since 9/11 been targeted by law enforcement authorities in their homes, at work, and while driving or walking,53 airports and border crossings have become especially daunting. One reason for this is a wide-ranging and intrusive Customs and Border Patrol (CBP) guidance issued in July 2008 that states, "in the course of a border search, and absent individualized suspicion, officers can review and analyze the information transported by any individual attempting to enter …. the United States."(Emphasis added)54 In addition, the standard to copy documents belonging to a person seeking to enter the U.S. was lowered from a "probable cause" to a "reasonable suspicion" standard.55 Operating under such a broad and subjective guidance, border agents frequently stop Muslims, Arabs, and South Asians for extensive questioning about their families, faith, political opinions, and other private matters, and subject them to intrusive searches. Often, their cell phones, laptops, personal papers and books are taken and reviewed.
The FBI's Terrorist Screening Center (TSC) maintains a list of every person who, according to the U.S. government, has "any nexus" to terrorism.56 Because of misidentification (i.e., mistaking non-listed persons for listed persons) and over-classification (i.e., assigning listed persons a classification that makes them appear dangerous when they are not), this defective "watch-list" causes many problems for Muslims, Arabs, and South Asians seeking to enter the United States, including those who are U.S. citizens.
The case of Zabaria Reed, a U.S. citizen, Gulf War veteran, 20-year member of the National Guard, and firefighter, illustrates the problem. Trying to reenter the U.S. from Canada where he travels to visit family, Reed is frequently detained, searched, and interrogated about his friends, politics, and reasons for converting to Islam. Officials have handcuffed Reed in front of his children, pointed weapons at him, and denied him counsel.57
In 2005, a lawsuit—Rahman v. Chertoff—was filed in federal district court in Illinois by nine U.S. citizens and one lawful permanent resident, none of whom had any connection to terrorist activity.58 The plaintiffs—all of whom are of South Asian or Middle Eastern descent— alleged that they were repeatedly detained, interrogated, and humiliated when attempting to re-enter the U.S. because their names were wrongly on the watch-list, despite the fact that they were law abiding citizens who were always cleared for re-entry into the U.S. after these recurring and punitive detentions.59
In May 2010, the court dismissed the case, finding that almost all of the disputed detentions were "routine," meaning that border guards needed no suspicion at all to undertake various intrusions such as pat-down frisks and handcuffing for a brief time.60 Further, the court held that where the stops were not routine, the detentions, frisks, and handcuffings were justified by the placement of the individuals on the TSC's database—even when the listing may have been a mistake.61
Notwithstanding the adverse decision in the Rahman case, and the continuation of these practices on a national level, it is important to note that there have been certain positive changes in government policy since 2005. Specifically, a standard of "reasonable suspicion" is now used before a name can be added to the TSC’s database, which marks a sharp departure from the essentially "standardless" policy previously in effect.62
Individuals wearing Sikh turbans or Muslim head coverings are also profiled for higher scrutiny at airports. In response to criticism from Sikh organizations, the Transportation Security Administration (TSA) recently revised its operating procedure for screening head coverings at airports. The current procedure provides that:
All members of the traveling public are permitted to wear head coverings (whether religious or not) through the security checkpoints. The new standard procedures subject all persons wearing head coverings to the possibility of additional security screening, which may include a patdown search of the head covering. Individuals may be referred for additional screening if the security officer cannot reasonably determine that the head area is free of a detectable threat item. If the issue cannot be resolved through a pat-down search, the individual will be offered the opportunity to remove the head covering in a private screening area.63
Despite this new procedure, and TSA's assurance that in implementing it "TSA does not conduct ethnic or religious profiling, and employs multiple checks and balances to ensure profiling does not happen,"64 Sikh travelers report that they continue to be profiled and subject to abuse at airports.65
Amardeep Singh, director of programs for the Sikh Coalition and a second-generation American, recounted the following experience in his June 2010 testimony before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee:
Two months ago, my family and I were coming back to the United States from a family vacation in Playa Del Carmen, Mexico. At Fort Lauderdale Airport, not only was I subjected to extra screening, but so was [my 18 month-old son Azaad]. I was sadly forced to take my son, Azaad, into the infamous glass box so that he could [be] patted down. He cried while I held him. He did not know who that stranger was who was patting him down. His bag was also thoroughly searched. His Elmo book number one was searched. His Elmo book number two was searched. His minimail truck was searched. The time spent waiting for me to grab him was wasted time. The time spent going through his baby books was wasted time. I am not sure what I am going to tell him when he is old enough and asks why his father and grandfather and soon him—Americans all three—are constantly stopped by the TSA 100% of the time at some airports.66
C. Immigration Law Enforcement
1. 287(g) and Other Federal Programs
The federal government has shifted significant responsibility for the enforcement of civil immigration laws to state and local law enforcement authorities. The Immigration and Customs Enforcement agency (ICE) in the U.S. Department of Homeland Security (DHS), which is the agency responsible for enforcing federal immigration laws, has done this through Agreements of Cooperation in Communities to Enhance Safety and Security (known as ICE ACCESS programs). Most notable among these programs is the 287(g) program, so named for its statutory source, Chapter 287(g) of the Immigration and Nationality Act.67
The 287(g) program allows state and local law enforcement authorities to enter into a Memorandum of Agreement (MOA) with DHS that enables them to perform limited immigration enforcement activities, provided there is supervision and training by ICE.68 The MOAs allow ICE to suspend or revoke the delegated authority at any time.69 As of June 2009, a total of 66 287(g) MOAs had been signed in 23 states.70 Funding for the 287(g) program has increased significantly on an annual basis since fiscal year 2006, when $5 million was allocated for the program, to $68 million in fiscal year 2010.71
Chapter 287(g) was added to the Immigration and Nationality Act in 1996, at a time when the U.S. Department of Justice (DOJ) recognized no inherent authority for state and local law enforcement authorities to enforce federal immigration laws.72 A 2002 opinion from the DOJ Office of Legal Counsel (OLC), however, reversed that earlier position, and concluded that state and local law enforcement authorities do have such inherent authority.73
The stated purpose of the 287(g) program is to pursue undocumented immigrants suspected of committing serious crimes, "giving [state and local] law enforcement the tools to identify and remove dangerous criminal aliens."74 A 2007 ICE factsheet describing the 287(g) program states that it is
not designed to allow state and local agencies to perform random street operations. It is not designed to impact issues such as excessive occupancy and day laborer activities … it is designed to identify individuals for potential removal, who pose a threat to public safety, as a result of an arrest and/or conviction for state crimes. It does not impact traffic offenses such as driving without a license unless the offense leads to an arrest … Officers can only use their 287(g) authority when dealing with persons suspected of committing state crimes and whose identity is in question or are suspected of being an llegal alien.75
Unfortunately, these clear statements of intent have not guided the operation of the 287(g) program. Combined with the 2002 OLC "inherent authority" opinion, the program has been used by state and local law enforcement authorities to stop, detain, question, and otherwise target individual Hispanics and entire Hispanic communities in a broad way to enforce federal immigration laws, thus racially profiling vast numbers of Hispanics—most of whom are U.S. citizens or legal residents—as suspected undocumented immigrants.
In New Jersey, a wide-ranging study found that despite a 2007 directive issued by the state attorney general that limited police to questioning about immigration status only those individuals arrested for indictable offenses or driving while intoxicated, officers routinely ignored these limitations, stopping and questioning tens of thousands of Hispanic motorists, pedestrians, passengers, and others who had committed no crime. During the six-month period following issuance of the directive, police referred 10,000 individuals who they believed were undocumented to ICE. Some of those turned over to ICE were crime victims. Others were jailed for days without charges. Many of those referred to ICE turned out to be legal residents or U.S. citizens. Only 1,417 individuals were charged with immigration offenses by the federal government. "The data suggest a disturbing trend towards racial profiling by the New Jersey police," said Bassina Farenblum, a lawyer for the Center for Social Justice at Seton Hall University Law School, which conducted the study.76
A familiar and troubling pattern has emerged in some jurisdictions operating under 287(g) MOAs pursuant to which local police make traffic stops of Hispanic drivers for minor infractions, if any, and then arrest the driver rather than issue the customary citation. Once an arrest is made, a federal background check can be conducted to determine if the driver is an undocumented immigrant.
The case of Juanna Villegas provides an example.In Nashville, Tennessee, on July 3, 2008, Villegas was pulled over for what the local police termed "careless driving," another potentially subjective pretext for "Driving While Black or Brown" traffic stops. Villegas, who was nine months pregnant, did not have a driver's license. Instead of receiving a citation, as is customary in Tennessee in such cases, she was arrested and taken to jail. The arrest of Villegas then enabled a federal immigration officer, operating under a 287(g) MOA with local authorities, to conduct a background check on her. He determined that Villegas was an undocumented immigrant who had previously been deported in 1996, but had no other criminal record. The county authorities then declared Mrs. Villegas a medium security prisoner and jailed her. Upon going into labor, she was handcuffed and transported to a hospital, where her leg was cuffed to the hospital bed until her labor reached the final stages and she gave birth. She was not permitted to see or speak to her husband, who came to pick up the baby from the hospital as his wife was returned to jail. Hospital personnel offered Villegas a breast pump, but she was not permitted to take it back to her cell. Villegas's breasts then became infected and her newborn son developed jaundice. Five days after her arrest, she pleaded guilty to driving without a license and was sentenced to time served. Villegas was then transferred to the jurisdiction of ICE, which began deportation proceedings, but immediately released her in accord with its policy against separating babies from their nursing mothers.77
Local law enforcement authorities now profile entire communities as they assume duties of immigration enforcement under 287(g) MOAs. Nowhere is there a clearer illustration of the abuses inherent in such community-wide policing actions than in Maricopa County, Arizona, where Sheriff Joe Arpaio has received national attention for his aggressive "Driving While Brown" profiling of Hispanic drivers, as well as his sweeps of Hispanic communities. In the most notorious of these neighborhood sweeps, Arpaio sent more than 100 deputies, a volunteer posse, and a helicopter into a community of approximately 6,000 Yaqui Indians and Hispanics outside Phoenix. For two days, this outsized police presence stopped residents on the street, chased them into their homes, and generally terrorized community members so completely that many will not come out of their homes if they see a sheriff's patrol car. By the time the operation had ended, a total of only nine undocumented immigrants had been arrested.78
Arpaio has also led raids on area businesses that employ Hispanics, causing a substantial number of U.S. citizens and lawful residents to be stopped, detained, and questioned. As a result, employers are reluctant to hire U.S. citizens or lawful residents who happen to be Hispanic because of the risk of disruption to their businesses that the sheriff's raids may cause.79
Responding to outcries about such abuses, the Obama administration revised its 287(g) MOA with the Maricopa County Sheriff's Office (MCSO) to restrict it to conducting background checks only of prisoners in local jails. Perversely, such an arrangement could lead to more arrests of Hispanics for traffic violations that customarily merit only a summons. Perhaps previewing his adoption of this tactic after his 287(g) authority had been restricted, Arpaio commented, "[t]hey took away my authority on the streets. That doesn't matter because I will still pursue illegals on the streets of Maricopa utilizing the authority I have as the elected official."80
Like Arpaio, Sheriff Tom Helder of Washington County, Arkansas, seemed unconcerned about racial profiling and the potential for U.S. citizens and lawful residents to be caught up in his 287(g) dragnets. "There's going to be collateral damage," said Helder. "If there’s 19 people in there who could or could not be here illegally, they are going to be checked. Although those people might not be conducting criminal activity, they are going to get slammed up in the middle of an investigation."81
In North Carolina, Alamance County Sheriff's Office personnel assured Hispanic residents that the county’s 287(g) authority would only be used to deport undocumented immigrants who committed violent crimes. Instead, of 170 roadblocks set up to spot-check licenses, 30 were established outside Buckhorn market on a Saturday or Sunday morning, the customary time when Hispanic residents shop there by the hundreds. Police have also arrested Hispanics at schools, libraries, and sporting events. Five immigrants were arrested for fishing without a license, rarely an offense resulting in an arrest, and then deported. Perhaps this profiling of entire communities should not be surprising in a county where Sheriff Terry Johnson declared about Mexicans, "[t]heir values are a lot different—their morals—than what we have here. In Mexico, there’s nothing wrong with having sex with a 12, 13 year-old girl … They do a lot of drinking down in Mexico."82
Although the ICE factsheet provides that 287(g) programs are not intended to be used to impact "day laborer activities" or "traffic offenses," that prohibition is not observed. A 2009 report by Justice Strategies found that 287(g) MOAs were being used in Maricopa County, Arizona, to do "crime suppression sweeps" of day laborer sites.83 And in a study of the implementation of 287(g) MOAs in North Carolina, the state ACLU and the University of North Carolina Immigration and Human Rights Policy Clinic found that a majority of arrests in several counties came as a result of traffic stops, not criminal acts.84
Enforcement of federal immigration laws by local law enforcement authorities under 287(g) MOAs is inherently problematic. As the ACLU explained in 2009 testimony before Congress:
Because a person is not visibly identifiable as being undocumented, the basic problem with local police enforcing immigration law is that police officers who are often not adequately trained, and in some cases not trained at all, in federal immigration enforcement will improperly rely on race or ethnicity as a proxy for undocumented status. In 287(g) jurisdictions, for example, state or local police with minimal training in immigration law are put on the street with a mandate to arrest "illegal aliens." The predictable and inevitable result is that any person who looks or sounds "foreign" is more likely to be stopped by police, and more likely to be arrested (rather than warned or cited or simply let go) when stopped.85
As indicated, the stated purpose of the 287(g) program is to give state and local law enforcement authorities the tools to bring in undocumented immigrants who have engaged in serious criminal offenses, and supporters of the program will misleadingly cite cases of dangerous or violent criminals who are also in this country without authorization. Sheriff Charles Jenkins of Frederick County, Maryland, made this point in written testimony that he submitted to the House Homeland Security Committee in March 2009: "Some of the most serious offenses in which criminal aliens have been arrested as offenders and identified include: Attempted 2nd Degree Murder, 2nd Degree Rape, Armed Robbery, 1st Degree Assault, Child Abuse, Burglary, and Possessing Counterfeit U.S. Currency."86 But these comments fail to mention that state and local law enforcement authorities can already arrest anyone suspected of committing these offenses without 287(g) authority from ICE, since the authority to arrest is based on the act and not the actor's immigration status. Giving police the ability to inquire into a person's immigration status in no way enhances their ability to meet the goals of law enforcement.
In March 2010, the Department of Homeland Security (DHS) Office of Inspector General issued a comprehensive 87-page report assessing the 287(g) program (OIG report).87 This Report is highly critical of the operation of the program:
We observed instances in which Immigration and Customs Enforcement and participating law enforcement agencies were not operating in compliance with the terms of the agreements. We also noted several areas in which Immigration and Customs Enforcement had not instituted controls to promote effective program operations and address related risks. Immigration and Customs Enforcement needs to (1) establish appropriate performance measures and targets to determine whether program results are aligned with program goals; (2) develop guidance for supervising 287(g) officers and activities; (3) enhance overall 287(g) program oversight: (4) strengthen the review and selection process for lawenforcement agencies requesting to participate in the program; (5) establish datacollection and reporting requirements to address civil rights and civil liberties concerns; (6) improve 287(g) training programs; (7) increase access to and accuracy of 287(g) program information provided to the public; and (8) standardize 287(g) officers’ access to Department of Homeland Security information systems.88
With regard to civil rights violations generally, and racial profiling specifically, the OIG report notes that those critical of the 287(g) program "have charged that ICE entered into agreements with [law enforcement authorities] that have checkered civil rights records, and that by doing so, ICE has increased the likelihood of racial profiling and other civil rights violations."89 Crediting these criticisms, the OIG report concludes that "ICE needs to direct increased attention to the civil rights and civil liberties records of current and prospective 287(g) jurisdictions," and "must include consideration of civil rights and civil liberties factors in the site selection and MOA review process."90
Although perhaps the most well-known, the 287(g) program is not the only ICE-state/local law enforcement authority collaboration program that raises concerns about racial profiling. As the ACLU noted in its 2009 Congressional testimony:
Included among the problematic "other jail-screening programs" is the Criminal Alien Program (CAP), which involves an immigration screening process within federal, state, and local correctional facilities to identify and place immigration holds on "criminal aliens to process them for removal before they are released to the general public."92 Although CAP is intended to target "illegal aliens with criminal records who pose a threat to public safety,"93 a recent study by the Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley School of Law, indicates that the program is not effective in prioritizing the arrest and removal of individuals who commit dangerous or violent crimes. The study, which examined the CAP program in Irving, Texas, found that felony charges accounted for only two percent of the immigration holds, while 98 percent were issued for misdemeanor offenses.94
Another ICE-state/local law enforcement authority collaboration program that raises concerns about racial profiling is the Secure Communities program. This ICE program, which was launched in 2008, allows local authorities to run fingerprint checks of arrestees during the booking process against DHS databases, not just FBI databases. According to ICE, "[t]he technology enables local Law Enforcement Agencies (LEAs) to initiate an integrated records check of criminal history and immigration status for individuals in their custody … when there is a fingerprint match in both systems, ICE and the LEA that encountered the individual are automatically notified, in parallel."95 Local LEAs can apparently run fingerprint checks of any person in their custody, thus making the Secure Communities program ripe for abuse. With the program in place, police may have a strong incentive "to arrest people based on racial or ethnic profiling or for pretextual reasons so that immigration status can be checked."96
2. State Initiatives: Arizona’s S.B. 1070
In addition to federal programs such as those discussed above that incentivize state and local law enforcement authorities to engage in racial profiling, federal inaction on comprehensive immigration reform has prompted state lawmakers to undertake initiatives of their own. Many of these state initiatives have further encouraged racial profiling.
During the first half of 2010, 314 laws and resolutions were enacted across the country, representing a 21 percent increase over the same period in 2009, as states tightened restrictions on hiring undocumented immigrants, instituted stringent ID requirements to receive public benefits, and increased their participation in programs aimed at removing persons who are in the country without authorization.97 But no state law has been as sweeping or controversial as Arizona's S.B. 1070—the "Support our Law Enforcement and Safe Neighborhoods Act." The stated purpose of S.B. 1070, which was passed in April 2010, is to "discourage and deter" the presence of unauthorized immigrants in Arizona.98 S.B. 1070 turns mere civil infractions of federal immigration law, such as not carrying immigration registration papers, into state crimes, and requires police to inquire about the legal status of individuals if "reasonable suspicion" exists during arrests or even traffic stops. The law also gives private citizens the right to sue Arizona law enforcement authorities if they believe that the law is not being fully enforced. S.B. 1070 has provided a template for other states, and within a few months of its enactment, clone bills were being considered in more than 20 states around the country.99
Opponents of S.B. 1070 contend that the law will lead to more racial profiling, increase community mistrust of the police, and strain already limited law enforcement resources. The Arizona Association of Chiefs of Police has opposed the law, stating that it will "negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner."100 And President Obama has criticized the law, calling it a "misguided" effort to deal with a national problem.101
In May 2010, a group of civil rights organizations filed a class action lawsuit in federal district court in Arizona challenging the constitutionality of S.B. 1070 on the ground that it is "preempted" by federal law.102 The U.S. Department of Justice (DOJ) filed a similar lawsuit in July.103
On July 28, one day before S.B. 1070 was scheduled to go into effect, the court issued a preliminary injunction in the DOJ's lawsuit, enjoining implementation of certain key provisions of the law, including those that raised the most significant concerns regarding racial profiling.104 The state appealed the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit, and, as of the date of this publication, the Ninth Circuit had not issued its decision.105
D. The Department of Justice’s 2003 Guidance
As evidence of its bona fides in attempting to eliminate racial profiling by federal law enforcement authorities, the Bush administration relied heavily on the DOJ’s June 2003 "Guidance Regarding the Use by Federal Law Enforcement Agencies" (2003 Guidance), which was developed in response to a directive from then- Attorney-General John Ashcroft "to develop guidance for Federal officials to ensure an end to racial profiling in law enforcement."106 But this reliance on the 2003 Guidance was misplaced.
At the time of its issuance, The Leadership Conference on Civil and Human Rights—reflecting the views of the broader civil and human rights community— referred to the 2003 Guidance as a "useful first step," but emphasized that "it falls far short of what is needed to fulfill the president's promise [in his February 27, 2001, address to Congress] to end racial profiling in America."107 As Wade Henderson, then-executive director (and currently president and CEO) of The Leadership Conference explained:
The guidance falls far short of what is needed in four important ways. First, it does not apply to state and local police, who are more likely than federal agents to engage in routine law enforcement activities, such as traffic and pedestrian stops. Second, the guidance includes no mechanism for enforcement of the new policy, leaving victims of profiling without a remedy. Third, there is no requirement of data collection to monitor the government's progress toward eliminating profiling. And finally, the guidance includes broad and vaguely worded 'national security' and 'border' exemptions that could swallow the rule. Many in the Latino, Arab, Muslim, African, and South Asian communities will remain targets of unjustified law enforcement action based on race or ethnicity.108
Despite these and other criticisms made by The Leadership Conference and its allies—including the failure of the 2003 Guidance to prohibit profiling on the basis of national origin or religion—the 2003 Guidance has to date remained unchanged. In his November 18, 2009, appearance before the Senate Committee on the Judiciary, Attorney General Eric Holder stated that "[i]n the area of racial profiling, the Department's [June 2003 Guidance] has been the subject of some criticism," and announced that he had "initiated an internal review to evaluate the 2003 Guidance and to recommend any changes that may be warranted."109 That review is presently ongoing.