Racial Profiling – Testimony of Wade Henderson

Location: House Subcommittee on the Constitution, Civil Rights, and Civil Liberties

Chairman Conyers, Chairman Nadler, Ranking Member Smith, Ranking Member Sensenbrenner, and members of the Committee: 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 regarding the problem of racial profiling and the use of suspect classifications in law enforcement policy.

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 a high education for children, ensuring economic opportunity and justice for all workers, and reforming our criminal justice system.

I applaud the Committee for holding this hearing on a matter of vital importance to our coalition. Despite the strides our nation has made toward achieving racial equality, racial profiling is an area in which racial inequality persists.

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 and 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, regardless of race, ethnicity, religion, or national origin.

Following the tragic events of September 11, 2001, many South Asians, Muslims, Arabs, and Sikhs, as well as other immigrants were treated with generalized suspicion based on their national origin, ethnicity and religion and without trustworthy information linking them to criminal conduct. Policies primarily designed to impact certain groups, however, are ineffective and often result in the destruction of civil liberties for everyone. Singling out African Americans, Latinos, Muslims, Arabs, and 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.

In 2003, The Leadership Conference on Civil Rights Education Fund released a policy report entitled “Wrong Then, Wrong Now, Racial Profiling Before & After September 11, 2001.” The report examined the flawed and widespread practice of racial profiling, which was given a new dimension in the aftermath of the events of September 11. The rigorous empirical evidence developed showed that minority drivers were 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 use race as a basis for determining who to investigate for such activity as drug trafficking, gang involvement, and immigration violations. Sadly, 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.

Racial profiling leads to individual indignity and suffering, undermines the integrity of our criminal justice system, and instills fear and distrust among members of targeted communities. When law enforcement authorities engage in profiling, they pay less attention to actual criminal behavior while instilling fear and distrust in members of targeted communities. Racial minorities continue to be targeted at disproportionate rates by law enforcement and the targeting is not effective. Recent data on stops and frisks in New York City showed the racially driven use of stops and frisks against minorities yields little achievements in fighting crime. According to the data, in 2009, even though Blacks and Latinos comprise 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.¹ The data also demonstrates 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.²

Recent federal government initiatives designed to combat illegal immigration further encourage racial profiling. 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 Section 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, terrorize, 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 incentivize police to racially profile vast numbers of Latinos, most of whom are U.S. citizens or legal residents, as potential illegal immigrants. As this Committee is well aware, the Office of Inspector of DHS released a report in April 2010 confirming many of the criticisms levied against the program by advocates and immigration groups since implementation of section 287(g) began in 2002.³ The OIG report provides damning evidence that the program is fundamentally flawed.⁴

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. Arizona’s recently signed Senate Bill 1070 would require 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. This law, which goes into effect July 29, 2010, invites police to rely on appearance characteristics such as race, ethnicity, and language, and thereby essentially codifies racial profiling. The racial profiling invited by the Arizona legislation go wells beyond federal law and arguably violates both the Constitution’s guarantee of equal protection under the law and federal civil rights protections.

The End Racial Profiling Act (ERPA) would apply the prohibition on racial profiling to state and local law enforcement, 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 lead to the elimination of profiling based on characteristics, including 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 “all men are created equal” and “equal protection under the law” apply to all persons living in the United States. By allowing racial and religious bias to decide who is detained by law enforcement, we betray that fundamental promise of equal protection under the law. We urge Congress to introduce and pass ERPA and finally take the first step toward ending racial profiling in America.

Thank you for your leadership on this critical issue.

1. The Center for Constitutional Rights, “Racial Disparity in NYPD Stops-and-Frisks: The Center for Constitutional Rights Report on UF-250 Data from 2008 through June 2008” (January 15, 2009)

2. Ibid.

3. The Performance of 287(g) Agreements, OIG-10-63 (Dep’t of Homeland Security Office of Inspector General, Mar. 2010)  (last visited June 15, 2010).

4. Id.