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September 2, 2014, 8:07 am

Congress takes on racial profiling

On April 17, with outrage over the shooting death of Trayvon Martin resounding across the nation, a Senate Judiciary subcommittee was convened to discuss what role, if any, the federal government should have in putting an end, once and for all, to racial profiling by law enforcement officials.

The Senators could not have chosen a more poignant time to engage in a public dialogue on the topic.

Less than a week earlier, Florida Special Prosecutor Angela Corey issued a probable-cause affidavit stating that Martin — who was killed on Feb. 26 while walking home from a convenience store in Sanford, Fla. — was “profiled” by his assailant George Zimmerman. The 17-year-old was being followed by Zimmerman — a neighborhood watch captain — on the grounds that he looked “like he’s up to no good or he’s on drugs or something.”

The day before the hearing, four Associated Press reporters were awarded the Pulitzer Prize for investigative reporting in recognition of their exhaustive exposé on the New York City Police Department’s controversial practice of targeted investigations of Muslim communities. The initiative — which has been operational since 2002 — included surveillance of student groups at Yale, the University of Pennsylvania, Rutgers and 13 other universities in the Northeast — based on no other factors than that their members happen to be Muslim.

And at the end of April, the Supreme Court heard a challenge to the “Support Our Law Enforcement and Safe Neighborhoods Act” — an Arizona law that obligates police officers to determine an individual’s immigration status during arrests and routine traffic stops when there is “reasonable suspicion” that the suspect is an illegal immigrant. For all intents and purposes, the law requires law enforcement in the state to profile citizens of Latino heritage. A decision on the case is expected in June.

The subject of discussion on Capitol Hill was a measure introduced in October by Senator Ben Cardin, D-Md., that would prohibit law enforcement from using race or ethnicity to justify “spontaneous investigatory activities” — including random stops of motorists and pedestrians — and require police to undergo training about profiling.

Cardin calls profiling “sloppy police work” and says it not only infringes on the rights of individuals and makes communities unwilling to cooperate with cops, but it places unnecessary burdens on police departments, as well.

“Racial profiling is bad policy, but given the state of our budgets, it also diverts scarce resources from real law enforcement,” he said. “The more resources spent investigating individuals solely because of their race or religion, the fewer resources directed at suspects who are actually demonstrating illegal behavior.”

The bill defines profiling as “relying, to any degree, on race, ethnicity, religion, or national origin” in deciding who to search or investigate, except when there is “trustworthy information” that a person fitting the description committed a crime. In other words, it’s all right to randomly stop a young Black male if a person fitting that description just robbed a bank in the area, but it’s not OK to target the same person leaving a known drug area on the assumption he might be a drug dealer.

In a departure from existing federal investigatory guidelines, the law would also apply to travelers entering the United States, and would prohibit ethnically motivated immigration-related workplace investigations.

Class action suit

Though technically unconstitutional under the Equal Protection Clause of the Bill of Rights, the use of racial and/or ethnic characteristics to initiate random investigations of citizens is standard operating procedure in many police jurisdictions across the country, and is well documented in most metropolitan areas.

Philadelphia has had its own problems with racial profiling under its controversial stop-and-frisk policy. In November 2010, the ACLU joined a local law firm to file suit on behalf of eight plaintiffs, all men of color, who say the Philadelphia Police Department misused the policy to conduct racially motivated stops of Black and Latino men in the city.

The plaintiffs included an attorney named Mahari Bailey, who says he was stopped and searched by police on four occasions between 2008 and 2010 for driving with tinted windows — a summary traffic offense. A Pennsylvania state representative who was handcuffed and detained for questioning the allegedly illegal stop of two of his elderly constituents was also part of the suit.

As part of a city settlement with the plaintiffs, last June Mayor Michael Nutter signed an executive order that requires all police officers to carry “definition cards,” explaining when and under what circumstances random stops are legal, and set a January 1, 2012 deadline for the establishment of an electronic database of Department Pedestrian Investigation Reports that outline random stops and the reasons for them.

According to Mark McDonald, the mayor’s press secretary, that database is now up and running, and the city will be making available, on a monthly basis, electronic copies of reports on every single pedestrian or vehicle stop conducted by police — which he says average 5,000 a week.

Dean JoAnne Epps of Temple University’s Beasley School of Law — who was appointed by the city to independently monitor the program’s progress — confirmed that she has been told a quarterly report is “forthcoming.”

An inefficient strategy

Law enforcement officials claim that spontaneous stop-and-frisk is a vital tool in community policing, without which more criminals would walk the streets and more crimes would go unsolved.

The problem with that assertion is that statistics simply don’t back it up. In 2011, for instance, the New York division of the American Civil Liberties Union documented 685,724 incidences of stop-and-frisk, 87 percent of them targeted against Blacks or Latinos. With numbers like that, you’d expect a lot of criminals to be behind bars. But the data shows that nearly nine out of ten of those stopped were never convicted of a crime. And that doesn’t even take into account the NYPD’s long-standing practice of targeting Muslims.

In Philadelphia, a survey of 253,333 stops conducted under stop-and-frisk in 2009 revealed that roughly 183,000, or 72.2 percent, were of African Americans. Only 8.4 percent of those stops led to an arrest.

According to the Brennan Center for Justice at New York University’s School of Law, numerous studies have shown that using race or ethnicity as a proxy for criminality is ineffective, and the likelihood of finding contraband is roughly equal — regardless of whether a suspect is Black or white. In fact, data suggests that using factors like race or ethnicity to initiate investigations actually produces fewer results. For instance, when the United States Customs Service changed its stop and search procedures to focus on race-neutral behavioral indicators, the Center noted, it conducted two-thirds fewer searches, but tripled its “hit rate.”

East Palo Alto Police Chief Ronald Davis, who testified at the Senate hearing, says that in his experience, profiling based on race or ethnicity is counter productive, because it draws attention away from legitimate investigatory practices.

“I cannot think of any context in which race is appropriate, other than when you’re describing someone that’s committed a crime, and in fact ... I would say that, what race ends up doing is being a huge distracter,” he said.

Davis says there are much better ways to determine if someone is committing a crime than the color of their skin.

“To know whether a particular vehicle traveling down an interstate highway might be carrying a load of illegal drugs, the most important thing a police officer can do is to observe the behavior of the driver and any passengers,” he said. “Behavior can be used to successfully predict other behavior. Appearance does not predict behavior, except in the most misleading ways. To use the old baseball cliché, using racial or ethnic appearance as a factor in deciding who to stop or search takes one’s eyes off the ball.”

Effectiveness aside, not everyone thinks federal legislation is the right course of action. In testimony, Frank Gale — the national second vice president of the Fraternal Order of Police — called the bill’s language over-broad and insisted that racial profiling is “hyped by activists, media and others with political agendas.”

Gale, who is Black, said the legislation would inhibit even the most basic discretionary policing, leaving beat cops hamstrung without the presence of an eyewitness to point out crimes in the act.

“No one ought to be stopped solely on the basis of their race,” Gale told the subcommittee. “But to contend that the successful practice of profiling — which does not consider race exclusively — be abandoned when it has proved to be a successful tool to prevent crime and catch criminals is not the answer.”

A decade-long effort

This isn’t the first time Congress has attempted to legislate racial profiling at the federal level. Identical bills have been introduced in every session of Congress since 2001. In February of that year, in his first Joint Address to Congress, President George W. Bush said that racial profiling is “wrong and we will end it in America.”

Then came 9/11, and fear of a terrorist attack made the idea of a law prohibiting racial and ethnic profiling seem like a quaint holdover from less dangerous times. In the meantime, racially motivated arrest, prosecution and incarceration have been dubbed the “New Jim Crow” by advocates for criminal justice reform, while targeted investigations of Muslims and persons of Middle Eastern descent have drawn a strong backlash from civil libertarians and constitutional rights experts.

It remains to be seen if this latest attempt to bring an end to racial profiling will fare any better than those before it.