ERPA and Racial Profiling
The End Racial Profiling Act (ERPA)
Status of Legislation
- Senator Benjamin Cardin (D-MD) introduced ERPA (S. 1038) in the Senate in May 2013. There are currently 16 co-sponsors in the Senate.
- Congressman John Conyers (D-MI) introduced ERPA (H.R. 2851) in the House in July 2013. There are currently 54 co-sponsors in the House.
- The House and Senate versions are almost identical, with a few key differences including: H.R. 2851 includes gender as a protected category under the prohibition against profiling, and S. 1038 contains privacy protections to limit the uses of the data collected under ERPA.
What ERPA Does:
- Prohibits profiling by federal, state, local and Indian tribal law enforcement authorities on the basis of race, religion, ethnicity or national origin;
- Mandates law enforcement training on racial profiling and data collection on all law enforcement routine or investigatory activities;
- Creates a private right of action for victims of racial profiling to seek redress;
- Authorizes the Department of Justice to provide grants for the development of best practices to discourage racial profiling and withholding grants from law enforcement agencies that do not comply with ERPA; and
- Requires the Department of Justice to provide periodic reports to assess any ongoing discriminatory policing practices by federal, state, local, and tribal law enforcement authorities.
The 2003 Department of Justice Guidance Regarding the Use of Race by Federal Law Enforcement Agencies
What the Guidance Does:
- The guidance makes clear that the federal government views racial profiling as an issue of national concern and characterizes racial profiling as ineffective and inconsistent with American values of fairness and justice.
- The guidance prohibits federal agents, during the course of traditional law enforcement activities, from using race or ethnicity in any way, except in a specific suspect description.
How the Guidance Needs to Be Reformed:
- Though the guidance is a significant step forward, it requires major reform to be fully effective in eliminating racial profiling in law enforcement.
- The guidance should be revised to:
- Prohibit profiling based on religion and national origin;
- Eliminate loopholes that currently allow for racial profiling in the name of border and national security;
- Prohibit profiling in the context of law enforcement surveillance activities;
- Apply to state and local law enforcement agencies working in partnership with federal agencies or receiving federal funding; and
- Include enforceable accountability mechanisms.
Racial profiling violates fundamental American principles of equality and justice.
- Racial profiling occurs when police target people for humiliating and often frightening interrogations, searches and detentions based not on any evidence of criminal activity but on individuals’ perceived race, ethnicity, nationality or religion.
- Racial profiling violates the U.S. Constitution by betraying the fundamental principle of equal protection under the law established by the 14th Amendment and infringing on the 4th Amendment guarantee that all people be free from unreasonable searches and seizures.
- Racial profiling violates the principle of nondiscrimination in international human rights law. This principle is a ‘non-derogable’ right, meaning that it must always be respected, even in times of crisis, including terrorist threats. By failing to adequately address and eradicate the pervasive problem of racial profiling, the United States is in violation of its obligations under international human rights treaties that it has signed and ratified such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination.
Racial profiling remains a troubling nationwide problem.
- Although normally associated with African Americans and Latinos, racial profiling also affects Native Americans and, increasingly after 9/11, Arabs, Muslims, Middle Easterners and South Asians.
- Driving or Walking While Black or Brown:
- Across the United States, traffic stops and “stops and frisks” are often used as a pretext for determining whether minority individuals are engaged in criminal activity. Data from across the country demonstrate that racial profiling is an ineffective crime detection tactic.
- In New York, for example, New York Police Department (NYPD) “stop-and-frisk” data revealed that in 2011, a record 684,330 people were stopped, 87 percent of whom were black and Hispanic individuals—although they comprise approximately 25 percent and 28 percent of New York City’s total population respectively. Of those stopped, nine out of ten were not arrested nor did they receive summonses.
- A 2008 report by the ACLU of Arizona found that Native Americans were 3.25 times more likely, and African Americans and Hispanics were each 2.5 times more likely, to be searched during traffic stops than whites. It also found that whites were more likely to be carrying contraband than Native Americans, Middle Easterners, Hispanics and Asians on all major Arizona highways.
- A 2009 report by the ACLU and the Rights Working Group documented racial and ethnic profiling in 22 states and under a variety of federal programs.
- A 2008 report by Yale Law School researchers (commissioned by the ACLU of Southern California) found that black and Hispanic residents were stopped, frisked, searched and arrested by Los Angeles Police Department (LAPD) officers far more frequently than white residents, and that these disparities were not justified by local crime rates or by any other legitimate policing rationale evident from LAPD’s extensive data.
- Racial Profiling and Immigration Enforcement:
- Programs like the 287(g) program, the Secure Communities program and informal partnerships between state and local police and federal immigration authorities actively shift the responsibility of enforcing civil immigration laws to state and local law enforcement agencies. The Obama Administration has greatly expanded some of these initiatives, Secure Communities in particular. While the Administration claims that its priority is to target and remove dangerous convicted criminals who pose a threat to our communities, these programs lack meaningful safeguards against racial profiling and have instead been used to disproportionately harass, question, abuse and detain individuals perceived to be Latino or Hispanic for minor offenses, some of whom are U.S. citizens and lawful permanent residents.
- Anti-immigrant state laws such as SB 1070 in Arizona and copycat laws in Alabama, Georgia, Indiana, South Carolina and Utah require police officers to check the status of anyone believed to be undocumented and have led to a climate of pervasive racial profiling. Despite the Department of Justice’s lawsuit against Alabama’s law, the Department of Homeland Security continues to operate 287(g) and Secure Communities in that state, as well as in jurisdictions found by DOJ to engage in biased policing.
- Recent data on Secure Communities shows that Latinos are disproportionately targeted by the program; though Latinos comprise 77% of the undocumented population, they comprise 93% of those arrested through Secure Communities.
- Racial Profiling Post-9/11:
- Following the tragic events of September 11, 2001, the U.S. government implemented counterterrorism programs and policies that profiled mostly Muslim, Arab, Middle Eastern and South Asian individuals. The trend of profiling these communities has grown, as seen in recent reports that reveal the large-scale surveillance of select ethnic communities by federal or local law enforcement agencies.
- Through Freedom of Information Act litigation, the ACLU has uncovered that the FBI has been conducting mapping and surveillance on individuals based on their race, ethnicity, national origin, religion and political activities.; For example, the FOIA documents reveal surveillance of African-American communities in Georgia, Chinese and Russian communities in San Francisco, and Muslim communities in Michigan.
- Recent reports also reveal large-scale surveillance and targeting of Muslim communities in New York and throughout the eastern seaboard by the NYPD.
Racial Profiling Is an Ineffective Law Enforcement Practice
- “Hit rate” reports of traffic stops and searches show that people of color, including African Americans and Latinos, are no more likely, and very often lesslikely, to have drugs or weapons than whites. Even government agencies have documented the ineffectiveness of relying on race as a proxy for criminal activity.
- An analysis of the data collected during 2008 under the Illinois Traffic Stops Statistics Act revealed that minority drivers were more than twice as likely as white drivers to be the subjects of consent searches, but that police were significantly more likely to find contraband in the vehicles of white drivers (the contraband “hit rate” was 24.37% for white drivers compared to 15.14% for minority drivers).
- Members of Muslim, Arab, Middle Eastern, Sikh and South Asian communities have been singled out for very intrusive questions, invasive searches and lengthy detentions at airports and border, partly due to terrorist watch lists rife with errors. Often, agents separate children from their families during these interrogations, intimidate innocent individuals with guns and threatening demeanors, and hold individuals for hours absent reasonable suspicion or probable cause. Policies proclaiming to weed out potential terrorists that have relied on racial and religious profiling have not demonstrated clear counterterrorism benefits.
- A 2001 Department of Justice report found that, although blacks and Latinos were more likely to be stopped and searched by police, they were less likely to be in possession of contraband. On average, searches and seizures of white drivers yielded evidence 17 percent of the time, compared to only 8 percent of the time for black drivers and only 10 percent of the time for Latino drivers.
- A 2000 GAO report on the activities of the U.S. Customs Service found that, among U.S. citizens, black women were nine times more likely than white women to be x-rayed after being frisked or patted down. Nevertheless, black women were less than half as likely as white women who were U.S. citizens to be found carrying contraband.
- Immigration enforcement programs, like Secure Communities, make communities less safe as immigrants and people of color report less crimes to law enforcement for fear of deportation and add to the challenges law enforcement face in building community trust.
- Racial profiling diverts police attention away from proven, more effective, evidence-based law enforcement techniques, thereby wasting police resources.
- When individuals and communities fear the police, they are less likely to call law enforcement when they are the victims of crime or in emergencies. Racial profiling sends a message to targeted communities that they are under suspicion. Creating a climate of fear compromises public safety.
Our Political Leaders Have Condemned Racial Profiling as Unjust and Counterproductive
- In 2001, then-President George W. Bush said about racial profiling: “It’s wrong, and we will end it in America. In so doing, we will not hinder the work of our nation’s brave police officers. They protect us every day -- often at great risk. But by stopping the abuses of a few, we will add to the public confidence our police officers earn and deserve.”
- In 2002, then-Attorney General John Ashcroft said: “Using race… as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement.”
- During a 2009 hearing before a Senate Appropriations Subcommittee, Attorney General Eric Holder stated that ending racial profiling was a “priority” for the Obama administration and that profiling was “simply not good law enforcement.”
- In response to the arrest of Harvard Professor Henry Louis Gates, President Barack Obama said: “there’s a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. That’s just a fact… And even when there are honest misunderstandings, the fact that blacks and Hispanics are picked up more frequently and oftentime for no cause casts suspicion even when there is good cause. And that's why I think the more that we’re working with local law enforcement to improve policing techniques so that we’re eliminating potential bias, the safer everybody is going to be.”
 Rivas, Jorge, “NYPD 2011 Data Reveals Highest Number of Stop-and-Frisks Ever,” Colorlines.com, February 14, 2012 available at http://colorlines.com/archives/2012/02/nypd_2011_data_reveals_highest_number_of_stop-and-frisks_ever.html
 ACLU and Rights Working Group, The Persistence Of Racial And Ethnic Profiling In The United States: A Follow-Up Report To The U.N. Committee On The Elimination Of Racial Discrimination (2009), available at http://www.aclu.org/pdfs/humanrights/cerd_finalreport.pdf.
 ACLU of Southern California, Racial Profiling & The LAPD: A Study of Racially Disparate Outcomes in the Los Angeles Police Department I (2008), available at http://www.aclu-sc.org/documents/view/47.
 Aarti Kohli, Peter L. Markowitz and Lisa Chavez, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” The Chief Justice Earl Warren Institute on Law and Social Policy, October 2011 available at http://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf.
 Stone, Andrea, “ACLU Accuses the FBI of Racial Profiling,” Huffington Post, December 20, 2011 available at http://www.huffingtonpost.com/2011/10/20/aclu-fbi-racial-profiling_n_1022738.html.
 “Bloomberg: NYPD’s monitoring of Muslims was legal,” Feb. 24, 2012 available at http://www.boston.com/news/nation/articles/2012/02/24/bloomberg_nypds_secret_2007_operation_legal/.
 Alexander Weiss and Dennis P. Rosenbaum, The University of Illinois at Chicago, Center for Research in Law and Justice, Illinois Traffic Stops Statistics Study 2008: Annual Report (2008), available at http://www.dot.state.il.us/travelstats/ITSS%202008%20Annual%20Report.pdf.
 For example, The National Security Entry-Exit Registration System (NSEERS), which began as a reaction to 9/11, allowed the US government to target Arabs, Middle Easterners, Muslims, and South Asian from designated countries for enhanced scrutiny. Not a single terrorism conviction resulted from the program. See http://www.rightsworkinggroup.org/sites/default/files/NSEERS_PolicyUpdate_July2011.pdf.
 Patrick A. Langan, Lawrence A. Greenfeld, Steven K. Smith, Matthew R. Durose, and David J. Levin. Contacts between Police and the Public: Findings from the 1999 National Survey, Bureau of Justice Statistics February 2001, NCJ 184957.
 U.S. General Accounting Office. Testimony Before the Subcommittee on Government Management, Information and Technology, Committee on Government Reform and House of Representatives, April 2001, available at http://www.gao.gov/archive/2000/g100150t.pdf.
 See “Law Enforcement Leaders Express Growing Concern with Secure Communities Program,” June 7, 2011 available at http://www.scribd.com/doc/81537738/Law-Enforcement-Leaders-Express-Growing-Concern-with-Secure-Communities-Program.
 Press Release, ACLU, Attorney General Says Ending Racial Profiling Is Priority For Obama Administration (May 7, 2009), available at http://www.aclu.org/racialjustice/racialprofiling/39542prs20090507.html.