Ban All Racial Profiling Without Exception

On Monday this week, the New York Times announced that its investigation of NYPD “stop and frisk” practices from 2006 through 2010 found police stopped 52,000 people in a small eight-block predominantly black neighborhood called Brownsville. That’s one stop per year for every one of the neighborhood’s 14,000 residents. Police claim that almost half of those stops were prompted by “furtive action” of the resident. Action by Congress to ban profiling based on race, ethnicity, nationality, and religion is long overdue, but Congress has been diverted by politicized and uninformed calls to use race-based profiling as a counterterrorism tool.

Prior to 9/11, a consensus was emerging in the country that racial profiling was a common, destructive practice requiring federal action. Congress is today poised to reconsider the End Racial Profiling Act (ERPA), first introduced in 2001, which would prohibit all law enforcement officers from engaging in racial profiling. The proposed ERPA provides legal options to individuals injured by racial profiling and includes grants to state and local agencies to enable them to meet the bill’s requirements. Arizona’s passage of SB1070 highlights the need for comprehensive federal legislation banning racial profiling, especially since copycat legislation is cropping up in at least eighteen more states. Arizona’s new anti-immigration law will intensify and spread racial profiling because it essentially criminalizes “walking while brown” by requiring law enforcement to act on reasonable suspicion that an individual is in the country illegally and arrest them if they fail to produce papers. Despite candidate Obama’s promise to ban profiling, and support for ERPA byAttorney General Eric Holder, the bill has yet to be introduced in this Congressional term. The House Judiciary Committee held hearings on the bill on June 17, 2010, but there remains strong pressure to carve out an exemption to allow profiling for national security reasons. Political Research Associates calls on Congress to pass ERPA and opposes any effort to water down the legislation with a national security exemption.

A national security exemption would create an enormous loophole in a nationwide ban on racial profiling. Under this loophole, current pretexts for racial profiling such as gang or drug enforcement could be justified under a new national security rationale. In Arizona, border security could easily be twisted to justify detentions and searches based on nothing more than ethnicity and nationality. Since 2003, FBI guidelines that generally prohibit racial profiling by federal law enforcement do allow the practice for purposes of “national security” and “border security.” As a result, racial profiling has become more pronounced since September 11, 2001, particularly among Muslim, South Asian, Middle Eastern, and Arab communities. The U.S. government has also mobilized local cops to gather and report “suspicious activities” in a manner that frequently targets people solely on the basis of nationality and religion.

An exemption for national security is entirely inconsistent with equal protection guarantees in the Constitution. In declaring that racial profiling is wrong and immoral, except where national security is at stake, the government currently asserts that there is something unique about the “War on Terror” that makes ethnicity and race legitimate factors when the same tactics have been found to be ineffective and discriminatory in other criminal investigations. That approach ignores the fact that there has not been a single documented incident where racial profiling by law enforcement resulted in the capture or detention of any suspect related to terrorism. The FBI caught no terrorists when it sought out 8,000 Middle Easterners and Muslims to interview in the months following 9/11. Instead, the interviews may have had a chilling effect on relations between the Arab community and law enforcement. Stereotyping in any context is too blunt, almost always overbroad, and a poor substitute for investigations based on particularized suspicion. Congress should listen to the U.S. intelligence officials who have emphasized that focusing on racial characteristics of individuals wastes resources and diverts attention away from criminal behavior by people who do not fit the profile.

Instead of spending millions of dollars to fill our jails with hard-working people, states like Arizona should be creating living-wage jobs and supporting those who keep the economy afloat. More importantly, the federal government should act quickly to shut down any law that criminalizes groups of people based on their race or nationality. The Department of Justice lawsuit against SB1070 is a good start, but Washington should also set the example by banning all racial profiling in the FBI guidelines and pass the ERPA.