This Report compares the practice of "traditional" street-level racial profiling with the post-September 11 profiling of Arabs, Muslims, and South Asians. It concludes that profiling is just as wrong now as it was before the war on terrorism began. The same arguments that led President Bush and Attorney General Ashcroft to condemn racial profiling before September 11 should lead them to abandon it now.
In the months preceding September 11, a national consensus had emerged on the need to combat racial profiling. In the fearful aftermath of the terrorist attacks, some reevaluated their views. It is now time to dispel those doubts, reawaken the national consensus, and ban racial profiling in America. Racial profiling occurs when law enforcement agents impermissibly use race, religion, ethnicity or national origin in deciding who to investigate. Compelling anecdotal and statistical evidence demonstrates that minorities are disproportionately targeted by law enforcement. Pretextual traffic stops of Blacks and Hispanics are common across the United States - the police frequently use race as a basis to suspect that minorities violate the drug and immigration laws.
Before September 11, polls showed that Americans of all races and ethnicities believed racial profiling to be both widespread and unacceptable. On February 27, 2001, President Bush told a joint session of Congress that racial profiling "is wrong and we will end it in America." With the introduction of the bipartisan End Racial Profiling Act by Senator Russell Feingold (D-Wis.) and Representative John Conyers (D-Mich.) on June 6, 2001, the enactment of comprehensive Federal anti-profiling legislation seemed imminent.
On September 11, this consensus evaporated. The 19 men who hijacked airplanes to carry out the horrific attacks on the World Trade Center and the Pentagon were Arabs from Muslim countries. The federal government immediately focused massive investigative resources and law enforcement attention on Arabs, Arab Americans, Muslims, and those perceived to be Arab or Muslim, such as Sikhs and other South Asians. Many of the practices employed in the name of fighting terrorism - from the singling out of young Arab or Muslim men in the United States for questioning and detention to the selective application of the immigration laws to nationals of Arab or Muslim countries - amount to racial profiling. But despite public hostility to street-level racial profiling, anti-terror profiling has flourished.
At the same time, there is new evidence that "traditional" racial profiling remains prevalent after September 11. The persistence of both forms of racial profiling makes clear the need to revive the pre-September 11 consensus that the practice of profiling is always wrong and should be prohibited.
Chapter I of the Report defines racial profiling and provides illustrations of the practice. Blacks, Hispanics, Asians, and Arabs have all been victimized by unjustified racial and ethnic assumptions and generalizations.
The next two Chapters of the Report have parallel structures.
Chapter II addresses "traditional" racial profiling - the reliance on race to investigate street-level criminal activity (especially drug crimes) and immigration violations. There are different forms of such profiling: disproportionate traffic and pedestrian stops of minorities; unwarranted searches of Black females by the U.S. Customs Service; and the targeting of Hispanics by the Immigration and Naturalization Service. The evidence is clear: minorities have been unfairly singled out for law enforcement attention. For example:
- A Department of Justice Report on police contacts with the public concluded that in 1999, African Americans were 20 percent more likely than Whites to be stopped and 50 percent more likely to have experienced more than one stop. Police were more than twice as likely to search an African American or Hispanic driver than a White driver.
- Data from the Los Angeles Police Department covering the period July to November 2002 showed that 22 percent of Black drivers stopped by LAPD were asked to step out their cars, compared to only seven percent of White drivers stopped. Once out of their cars, 67 percent of Blacks were patted down and 85 percent subjected to a body search. Fifty-five percent of Hispanics removed from their cars were patted down and 84 percent searched. By contrast, only 50 percent of Whites stopped were patted down and 71 percent searched.
Traditional profiling is fueled by the assumption that minorities commit more of the types of crimes that profiling is used to detect, e.g., drug crimes. In fact, statistical data from many jurisdictions shows the opposite: "hit rates" for minorities subjected to pedestrian and traffic stops, and to searches by the Customs Service, are generally lower than hit rates for Whites. For example:
- According to the New York Attorney General's Report on NYPD's "stop and frisk" tactics, stops of minorities were less likely to yield arrests than stops of Whites.
- According to a General Accounting Office report on U.S. Customs Service practices, while Black female U.S. citizens were nine times more likely than White females to be x-rayed following a frisk or patdown, they were less than half as likely to be found carrying contraband.
"Traditional" racial profiling is not only humiliating and contrary to core American values, it is also ineffective as a law enforcement tactic. And the consequences of racial profiling are severe: profiling harms innocent people, skews the U.S. prison population, alienates minority communities, and contributes to a crisis of confidence in the criminal justice system.
Chapter III explores new forms of profiling in the anti-terrorism context: the emergence of a "driving while Arab" version of "driving while Black"; detaining and deporting Arabs and Muslims who are uninvolved in terrorism; and the singling out of young Arab men for questioning based on nothing other than their ethnicity. Just as African Americans, Hispanics, and other minorities have been targeted by police officers investigating street crime and immigration violations, federal agents have targeted Arabs, Muslims and, in some cases, those who appear to be Arab or Muslim (Sikhs and other South Asians) in the anti-terrorism campaign, despite the absence of particularized suspicion.
The same arguments against traditional profiling apply to terrorism profiling.
First, terrorism profiling, like traditional profiling, is based on broad and inaccurate stereotypes about the propensity of certain racial, religious or ethnic groups to engage in particular criminal activity. Not all drug crimes are committed by African Americans, Hispanics and other minorities. The overwhelming number of minorities are law abiding citizens. Likewise, not all terrorism is committed by Arabs or Muslims, and not all Arabs or Muslims are terrorists.
Second, profiling in the terrorism context is no more useful as a law enforcement tactic than profiling in the street-crime context. Anti-terror profiling, like traditional profiling, is a crude and inadequate substitute for behavior-based enforcement.
Third, like traditional profiling, anti-terror profiling alienates communities that otherwise are natural allies to law enforcement.
The similarities between traditional profiling and terrorism profiling make clear that all manifestations of racial profiling are wrong and should be banned.
Chapter IV makes recommendations to combat all forms of racial profiling:
First, every federal, state, and local law enforcement agency should expressly ban the use of racial profiling.
Second, the ban on racial profiling should be legally enforceable, including by private citizens. Third, Federal, state, and local law enforcement agencies should adopt procedures to give effect to the profiling ban, including disciplinary procedures against officers found to have engaged in profiling; complaint procedures for those who claim to have been subjected to profiling; and data collection procedures.
Fourth, Federal and state funds should be made available for law enforcement agencies to establish systems to end racial profiling, such as early warning and officer training systems. Fifth, nationwide standards should be developed for the accreditation of law enforcement agencies, and such standards should include express guidance on racial profiling. Sixth, police oversight agencies, such as the Civil Rights Division of the Justice Department, should give priority to the investigation and remediation of racial profiling. Seventh, law enforcement agencies should strive for a more diverse workforce, in order to better serve the public.
Eighth, a public education campaign is necessary to explain the myths behind racial profiling, the effects of profiling on minorities, and the flaws of profiling as a law enforcement tool.
The events of September 11 were devastating to all Americans. But an effective anti-terror campaign can be waged without compromising America's commitment to equality under the law. This commitment is most severely tested in times of crisis. The nation now regrets the internment of thousands of Japanese-Americans during World War II, which serves as a precedent of what can happen when fear of a distant enemy erodes core constitutional values. The current debate over racial profiling provides an opportunity to address a similar problem now, before it becomes a painful historical memory.