Location: House Judiciary Committee; Subcommittee on Crime, Terrorism, and Homeland Security
Chairman Sensenbrenner, Ranking Member Scott, and members of the Subcommittee: I am Wade Henderson, president & CEO of The Leadership Conference on Civil and Human Rights. Thank you for the opportunity to submit testimony for the record on how smart policing targets criminal behavior and how racial profiling and the use of suspect classifications in law enforcement policy leads to poor results. I would also like to acknowledge and thank Judiciary Committee Chairman Smith and Ranking Member Conyers for their efforts to convene this hearing.
The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership of more than 200 national organizations to promote and protect the civil and human rights of all persons in the United States. Founded in 1950 by A. Philip Randolph, Arnold Aronson, and Roy Wilkins, The Leadership Conference works in support of policies that further the goal of equality under law through legislative advocacy and public education. While we were founded to be the legislative arm of the civil rights movement, our mission has since expanded so that today we are meeting the new challenges of the 21st century, which include guaranteeing quality education for children, ensuring economic opportunity and justice for all workers, and reforming our criminal justice system.
I applaud the Subcommittee for holding this hearing on a matter of vital importance to our coalition. Law enforcement’s duties include protecting and serving our communities and defending the U.S. Constitution. In order to uphold constitutional values, smart policing should target criminal behavior in a manner that is evidenced-based and data-driven. Smart policing that targets criminal behavior is done in partnership with researchers in order to uncover and identify biases; adopts multiple forms of data collection to give law enforcement a complete picture of issues that can be addressed through discipline; and does not exceed its capacity or take on conflicting roles, such as diverting local resources to enforce civil immigration laws.
Despite the strides our nation has made toward achieving racial equality, racial profiling is an area in which racial inequality persists, and it is counterintuitive to the goals of smart policing. Racial profiling is the reliance by law enforcement on race, ethnicity, national origin, or religion in deciding whom to investigate, arrest, or detain, where these characteristics are not part of a specific subject description. The practice of using race as a criterion in law enforcement flies in the face of progress we have made toward racial equality and must be stopped. Racial profiling is a moral and social problem that threatens our shared value of humane treatment of all people under the law.
Racial profiling violates U.S. laws. According to the U.S. Constitution, federal laws, and guidelines, every person has the fundamental right to equal protection under the law, regardless of race, ethnicity, religion, or national origin. Racial profiling is so insidious and pervasive that it can affect people in their homes or at work, or while driving, flying, or walking. It is antithetical to the founding principle in the Declaration of Independence that “all men are created equal” and to the constitutional right to equal protection under the law. Following the tragic events of September 11, 2001, many South Asians, Muslims, Arabs, Sikhs, and other targeted individuals were treated with generalized suspicion based on their perceived national origin, ethnicity, and religion, and without information linking them to criminal conduct. Policies primarily designed to impact certain groups are ineffective and often result in the destruction of civil liberties for everyone. Singling out African Americans, Latinos, Muslims, Arabs, or South Asians for special law enforcement scrutiny without a reasonable belief that they are involved in a crime will result in little evidence of actual criminal activity and wastes important police resources. Racial profiling makes us all less safe, by distracting law enforcement from the pursuit of individuals who pose serious threats to security.
Racial profiling leads to individual indignity and suffering, increases the likelihood that actual criminal behavior will go uncaught and unpunished, undermines the integrity of our criminal justice system, and instills fear and distrust among members of targeted communities. Racial minorities continue to be targeted at disproportionate rates by law enforcement, and the targeting is not and never will be effective. Recent data in New York City showed the racially driven use of stops and frisks against minorities yielded little achievements in fighting crime. According to the data, in 2009, even though Blacks and Latinos comprised 25 and 28 percent of New York City’s population respectively, they comprised 87 percent of the individuals that were stopped. Stops made of White individuals during that time period yielded slightly more contraband. The data also demonstrated that Blacks and Latinos are more likely to be frisked after a New York Police Department-initiated stop than Whites. Between 2005 and June 2008, only 8 percent of Whites stopped were also frisked, while 85 percent of Blacks and Latinos who were stopped were also frisked.
In March 2011, The Leadership Conference on Civil and Human Rights released a policy report entitled “Restoring a National Consensus: The Need to End Racial Profiling in America.” The report presents quantitative and qualitative evidence to demonstrate the widespread use of racial profiling in three contexts—street-level crime, counterterrorism, and immigration law enforcement. The report also demonstrates how racial profiling in the counterterrorism and immigration contexts is encouraged by misguided federal programs that incentivize law enforcement authorities to engage in the practice. Sadly, much of the data today is consistent with what it was almost a decade ago, and in many ways the need for action by our federal government is even more necessary at this time.
Recent federal government initiatives designed to combat illegal immigration encourage racial profiling. In one of several examples, Immigration and Customs Enforcement within the U.S. Department of Homeland Security (DHS) has shifted significant responsibility for enforcement of civil immigration laws to state and local law enforcement authorities. The use of the Delegation of Immigration Authority, otherwise known as the 287(g) program, by state and local law enforcement authorities has led to rampant abuses by those agencies. The facts show that many local law enforcement agencies repeatedly use 287(g) agreements to stop, frisk, detain, arrest, question, harass, and otherwise target individual Latinos and entire Latino communities in a broad way to enforce federal immigration laws, for no reason other than that they appear to be Latino and thus are profiled as potential illegal immigrants. But because it is impossible to ascertain a person’s legal status by his or her name, appearance, or way of speaking, 287(g) programs that focus on enforcing civil immigration laws encourage police to racially profile vast numbers of Latinos, most of whom are U.S. citizens or legal residents, as potential illegal immigrants. The Office of Inspector General (OIG) of DHS released a report in April 2010 confirming many of the criticisms leveled against the program by advocates and immigration groups since implementation of section 287(g) began in 2002. The OIG report provides damning evidence that the program is fundamentally flawed. Essentially, there is no guarantee or accountability that local law enforcement is not abusing the program and racially profiling immigrant communities.
Other efforts by state and local governments to redress the harm caused by racial profiling have been insufficient to address the national problem of racial profiling. On the heels of Arizona’s S.B. 1070 law, which among other things, required law enforcement officers to question the immigration status of someone who is stopped, detained, or arrested if there is “reasonable suspicion” that they are in the country illegally, several states have enacted copycat bills. Most recently, Alabama’s House Bill 56 also encourages racial profiling by including a similar “reasonable suspicion” clause and going a step further by authorizing the Alabama Department of Homeland Security to hire and maintain its own immigration police force. H.B. 56 empowers law enforcement to base “reasonable suspicion” on a person’s appearance, leading to targeting on the basis of perceived race, ethnicity, national origin, or English proficiency; in other words, suspicion of undocumented status is based on racial profiling. Reports from Alabama reveal that Latinos are the ones most affected by racial profiling through this and other immigration enforcement laws and programs.
The Department of Justice (DOJ) has filed a lawsuit challenging the constitutionality of Alabama’s H.B. 56, considered by many civil and human rights and immigration advocates to be the most draconian law of its kind in the nation. The suit alleges that provisions in the law “conflict with federal immigration law and undermine the federal government’s careful balance of immigration enforcement priorities and objectives.” We hope that the DOJ remains committed to eliminating the patchwork of state immigration laws that interfere with the federal government’s enforcement of immigration law in states including Alabama, Arizona, and most recently, in South Carolina.
For these reasons, racial profiling—in all of its forms—is not only morally wrong and ineffective, it undermines the integrity of our criminal justice system, instills distrust among targeted communities, and is detrimental to smart and effective policing. This Committee should introduce and pass the End Racial Profiling Act (ERPA), which would apply a prohibition on racial profiling to state and local law enforcement, including Alabama and other states across the country; close the loopholes in its application, include a mechanism for enforcement of the new policy; require data collection to monitor the government’s progress toward eliminating profiling; establish a private right of action for victims of profiling; and provide best-practice development grants to state and local law enforcement agencies that will enable agencies to use federal funds to bring their departments into compliance with the requirements of the bill. ERPA will help lead to the elimination of profiling based on characteristics such as race, religion, ethnicity, and national origin by law enforcement at all levels of government.
It is time for this Congress to lead the way to an America where the principles of “all men are created equal” and “equal protection under the law” apply to everyone. By allowing racial and religious bias to decide who is detained by law enforcement, we betray those fundamental promises. Legislation should require smart policing that effectively targets criminal behavior and takes the first step toward ending racial profiling in America. In remarks to the American-Arab Anti-Discrimination Committee, Attorney General Eric Holder stated, “racial profiling is wrong. It can leave a lasting scar on communities and individuals. And it is, quite simply, bad policing—whatever city, whatever state.”
Thank you for convening this hearing and for the opportunity to express our views.
 The Performance of 287(g) Agreements, OIG-10-63 (Dep’t of Homeland Security Office of Inspector General, March 2010) http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-63_Mar10.pdf (last visited November 2, 2011).