S.2481/H.R.4611 USA-Congress Title: A bill to prohibit racial profiling.

S.2481/H.R.4611 USA-Cogress
Title: A bill to prohibit racial profiling.
Sponsor: Sen Feingold, Russell D. [WI] (introduced 12/13/2007)

Sponsor: Rep Conyers, John, Jr.[MI-14] (introduced 12/13/2007)

Defines “racial profiling” as the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, or religion in selecting which individual to subject to routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure. Allows the United States, or individuals injured by racial profiling, to bring civil actions for declaratory or injunctive relief.

KATHERINE Y. BARNES†
Although the term is less than twenty years old,1 “racial profiling” — the act of investigating a particular racial group because of a belief that members of the group are more likely to commit certain crimes — has a long history in the United States. The practice began before the country did, in colonial times, when blacks were subject to greater policing because of a belief that they were more likely to commit crimes.2 Perhaps the largest single act of racial [*pg 1091] profiling in this country, the Japanese American internment,3 occurred much more recently. During World War II (WWII), 120,000 individuals of Japanese ancestry — two-thirds of whom were American citizens — were forced from their homes because of the belief that they were more likely to commit espionage or sabotage against the United States.4 German and Italian Americans were also the object of racial profiling during WWII, but of a less severe variety: they had to register with the police, abide by curfews, and submit to loyalty interviews.5 As with Japanese Americans, people in those ethnic groups were considered more likely to commit acts of sabotage and espionage.  [A small number of German and Italian Americans, primarily recent immigrants, were also interned during the war. See generally Proclamation No. 2526 (German enemy aliens); Proclamation No. 2527 (Italian enemy aliens).]

Before answering these questions, however, it will be useful to articulate a more precise definition of racial profiling. As I use the phrase, racial profiling occurs when race or ethnicity is used as a factor in deciding whom to subject to more intrusive police contact (generally a stop, search, or arrest), excluding those cases in which the police are looking for a specific suspect whose race is known. Racial profiling involves the belief — be it racist, rational, or a combination of the two — that certain crimes are committed disproportionately by a particular race. Thus, stopping and searching a car speeding on the highway because the driver is black and the officer believes (or has been told) that blacks are more likely to be drug couriers is racial profiling. Stopping and searching a car speeding on the highway because the driver is black and the officer has been told that a black man sped away from a drug bust is not racial profiling, although it may still be inappropriate, depending on the level of individualized suspicion. [One extreme example of an inappropriate police response to a witness description involving race is found in Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 1999), in which the Second Circuit upheld the dismissal of Equal Protection claims against the city. Id. at 334. In Brown, the victim, robbed at knifepoint, described her attacker as a young black man and said that his right hand had been cut during the robbery. Id. The police responded by stopping over two hundred black individuals and asking to see the individual’s right hand. Id. The City of Oneonta had fewer than three hundred black residents (not all young men), and approximately one hundred fifty black college students (also not all men) residing within its borders. Id. While deeply troubling, the police department’s use of race in this case was not racial profiling as I define it. For an argument that removing witness identification from the definition of racial profiling masks the racial justice issues at stake, see generally R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA L. REV. 1075 (2001).]

Rational Choice Foundations of Equal Protection in Selective

Enforcement: Theory and Evidence∗

Nicola Persico

Blacks and Hispanics tend to be overrepresented in police stops and searches,

and numerous lawsuits have been brought alleging racially biased law

enforcement practices. In his first address to Congress, President George W.

Bush    said  that  he   asked   his  Attorney   General   “to  develop  specific

recommendations to end racial profiling. It’s wrong, and we will end it in

America.” By the term “racial profiling,” he was referring to a presumed

unlawful use of race or ethnicity in police interdiction. These questions have

taken on a new hue in light of the events surrounding the September 11

bombings, which have brought into relief the critical importance of efficient

police work. As a result, the issue of how and when race and ethnicity can be

used in interdiction has been at the front and center of the public debate.

ROAD WORK: RACIAL PROFILING AND DRUG INTERDICTION

ON THE HIGHWAY

Samuel R. Gross & Katherine Y. Barnes*

It is certainly not news that American police officers devote a

disproportionate amount of their attention to racial and ethnic minorities.

The phrase “racial profiling,” however, is a recent arrival and has no set

meaning. As we use the term, “racial profiling” occurs when a law

enforcement officer questions, stops, arrests, searches or otherwise

investigates a person because the officer believes that members of that

person’s racial or ethnic group are more likely than the population at large

to commit the sort of crime the officer is investigating. The essence of

racial profiling is a judgment that the targeted group—before September 11,

2001, usually African Americans or Hispanics; now often Arab Americans

or visitors from Middle eastern countries—is more prone to crime in

general, or to a particular type of crime, than other racial or ethnic groups.

THE RHETORIC OF RACIAL PROFILING: SAMUEL R. GROSS

In 1988 racial profiling – the term, not the practice – was unknown. By 2000,

twelve years later, everyone, from George Bush to Jesse Jackson, agreed that racial

profiling is anathema. In this essay I review the brief and turbulent public career of

racial profiling: its origins in hijacker and drug courier profiling, its flowering as a
central aspect of drug interdiction on the highway, the ultimately successful efforts
to expose and end that practice, and the political backlash it unleashed. Since 1999,
no major American political figure has risked endorsing racial profiling, not even
after the terrorist attacks of 9/11, although some programs they support fit the
definition. Now that it is an acknowledged evil, many police departments work
hard to avoid claims of racial profiling, while on the other side complainants in a
host of contexts use the term to describe an extraordinary range of conduct. Along
the way racial profiling may have become less common, but it has not disappeared.