In the months preceding September 11, 2001, 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 consider race, religion, ethnicity, or national origin in deciding who to investigate.1 The practice was widespread before September 11 and has persisted since then, both in the street-level context in which it originally arose and in the new context of terrorism. This Report examines the use of racial profiling in both of these contexts, describes the impact profiling has on minorities and their communities, debunks the myths and assumptions that fuel profiling, and makes recommendations aimed at ending this practice.
For years, African Americans, Latinos,2 and other minorities complained that they received unwarranted police scrutiny in their cars and on the streets, but their complaints were routinely ignored. By early 2001, this had changed. Rigorous empirical evidence developed in civil rights lawsuits and other studies of police practices revealed that the so-called "driving while Black or Brown" phenomenon was more than anecdotal. Minority drivers were, in fact, stopped and searched more than similarly-situated Whites. The data also showed that minority pedestrians were stopped and frisked at a disproportionate rate, and that, in general, federal, state, and local law enforcement officials frequently used race as a basis for determining who to investigate for such activity as drug trafficking, gang involvement, and immigration violations. Polls showed that Americans of all races and ethnicities believed racial profiling to be a widespread practice.3
Government actions and words mirrored the public's increased concern about profiling. In the mid-1990's, the Civil Rights Division of the U.S. Justice Department entered into far-reaching settlement agreements to address profiling by certain state and local law enforcement agencies, such as the Los Angeles Police Department and the New Jersey State Police. Many states and localities imposed data collection and other requirements to address racial disparities in police practices. And by early 2001, concerns about profiling were voiced at the highest levels of the federal government. Attorney General Ashcroft publicly condemned profiling,4 and on February 27, 2001, President Bush told a joint session of Congress that profiling "[is] wrong and we will end it in America."5
On June 6, 2001, Senator Russell Feingold (D-Wis.) and Representative John Conyers (D-Mich.) took the President at his word and introduced the End Racial Profiling Act of 2001 (hereafter "ERPA").6 With seven Republicans among its original cosponsors, the bill went far beyond past congressional profiling proposals, which simply sought to determine the scope of the profiling problem by requiring the collection of traffic stop data.7 Already armed with empirical evidence proving that racial profiling was widespread, the sponsors of ERPA aimed higher, banning the practice of profiling; authorizing judicial enforcement of that ban by the victims of profiling (as well as by the federal government); and requiring state and local law enforcement agencies to collect traffic stop and other law enforcement data and to establish institutional safeguards against profiling as a condition of federal funding. ERPA also established a federal grant program to provide state and local governments with the resources they would need to implement these anti-racial profiling initiatives. Support for the bill was widespread; enactment of a comprehensive federal racial profiling law seemed imminent.
On September 11, the world changed. The 19 men who hijacked airplanes to carry out the horrific terror 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, and Muslims. That focus continues to this day and in some cases encompasses individuals who are perceived to be, but are not, Arab or Muslim, such as Sikhs and other South Asians.
The Bush Administration claims that its anti-terrorism efforts do not amount to racial profiling, but singling out for questioning and detention Arabs, Muslims, and South Asians and selective application of the immigration laws to nationals of Arab and Muslim countries, are practices that speak louder than words. Meanwhile, some commentators have explicitly called for the profiling of Arabs and other Muslims as a means to combat terrorism.8 In the aftermath of September 11, conduct that most Americans had come to view as unacceptable and contrary to America's constitutional ideals became mistakenly regarded by many as a legitimate and effective method of law enforcement in certain contexts.9 The events of September 11 also halted congressional efforts to address "traditional" racial profiling - the use of racial profiling to address street-level crime and immigration violations - despite abundant evidence that such profiling continued unabated. Notwithstanding the President's pledge to Congress, neither the House nor the Senate took up ERPA after September 11.
Indeed, recent legislative activity has hindered the effort to eliminate racial profiling. Last summer, Congress passed and the President signed a Customs Service reauthorization bill that expanded legal immunity for Customs officers engaged in unconstitutional searches, despite evidence from the General Accounting Office ("GAO") that the Customs Service has a history of racial profiling.10 Efforts to end racial profiling in general have been hampered by the Administration's efforts to legitimate the practice within the context of its counter-terrorism campaign.
This approach is flawed on two levels. First, as noted above, the problem of "traditional" racial profiling has persisted post-September 11 and is unrelated to the threat of terrorism. Second, and more important, the practice of profiling to fight terrorism is itself fundamentally flawed. Like "traditional" profiling, profiling of Arabs and Muslims is based on unfair and inaccurate stereotypes regarding a particular racial or religious group's tendency to commit certain types of crimes. It is an ineffective - indeed counterproductive - method of fighting crime and violates core constitutional values. While these concerns were drowned out in the months following September 11, it is now time to reestablish the national consensus against racial profiling. The purpose of this Report is to do so, in three ways:
- First, to highlight the persistence of "traditional," street-level racial profiling and review why such profiling is ineffective, harmful, and unacceptable;
- Second, to identify the different forms of anti-terrorism profiling post-September 11, highlight the parallels between these practices and traditional profiling, and explain why profiling is as flawed a law enforcement tactic in the terrorism context as in its traditional form; and
Chapter I of this Report defines racial profiling and provides several examples of the practice. The next two sections of the Report parallel one another: Chapter II addresses "traditional" profiling and Chapter III addresses anti-terror profiling; both Chapters identify forms of profiling and then explain why profiling is a flawed law enforcement tactic. This comparative approach exposes the many similarities between the two types of profiling -- the addition of "driving while Arab" to the profiling lexicon alongside "driving while Black" and "driving while Brown"; the involvement of certain specific federal law enforcement agencies, such as the Immigration and Naturalization Service, in both types of racial profiling; the inaccurate and unfair stereotypes that drive both types of profiling; and the flawed nature of profiling as a law enforcement tactic in both the traditional and terrorism contexts. These similarities make clear that the public should consider and policymakers should address all manifestations of profiling at the same time. Chapter IV makes recommendations in this regard.
The events of September 11 were devastating to all Americans. These events cannot, however, cause us to lose sight of 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 gives us a chance to address a similar problem now, before it becomes a painful historical memory.