Watch Ian’s vlog on this issue HERE
Although multiple presidential administrations, both Democrat and Republican, have deemed racial profiling unconstitutional, the use of this counterproductive practice is still prevalent on the federal, state and local law enforcement levels. Despite strong constitutional protections against its use, racial profiling has been a blemish on law enforcement agencies in the United States for centuries.
While constitutional and international statutes prohibit the use of racial profiling, the United States court system along with various federal agencies, have diminished this protection through landmark rulings and policy changes. In addition, the federal government has failed to pass effective legislation that bans the use of racial profiling throughout the country. This failure in federal protection against racial profiling has led to numerous cases of violations of basic constitutional and human rights throughout all American minority groups.
The most notable occurrences include the use of racial profiling of Muslims in airports, unfair and unproductive profiling of the Black and Hispanic communities in the “War on Drugs,” and profiling of potential illegal immigrants based on race, ethnicity, or religion.
Part 1: Federal Jurisdiction and Prevention
In part 1 of this series on racial profiling in the United States, I will look at the protection, or lack thereof, that exists on the federal level from the practice of racial profiling.
To understand how to prevent and protect against racial profiling in the United States, we first must understand exactly what racial profiling is. The most comprehensive definition is found in the End Racial Profiling Act of 2010 (ERPA), which is a failed piece of legislation that was proposed by John Conyers (D-MI) and Jerrold Nadler (D-NY). ERPA defines racial profiling as: “[T]he 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, except when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, or religion to an identified criminal incident or scheme.”
ERPA is the closest that the United States federal government has come to effectively ending the practice of racial profiling through federal legislation, However, the events of 9/11 stifled the apparently imminent passage of the bill in 2001, and again in 2004, 2005, 2007, 2009 and 2010.
Congressman Conyers spoke on the problem of racial profiling in America after his proposal of ERPA 2010: “Over the past two decades, the tensions between police and minority communities have grown as allegations of racial profiling by law enforcement agents, sometimes supported by data collection efforts, have increased in number and frequency.”
Conyers went on to speak about the highly debated Arizona Immigration law that essentially advocates for racial profiling and its negative impact on the minority community of the state.
Although ERPA entered Congress with bi-partisan support in the summer of 2001, the events of 9/11 seemed to change the collective mind of our federal government. The Bush administration rescinded their support and did not urge Congress to pass the legislation (The Leadership Conference on Civil and Human Rights).
The Bush administration along with Congress decided that this legislation would somehow hinder counterterrorism efforts. Not only is the continued dismissal of this legislation essentially promoting racial profiling, it could actually be hurting counterterrorism efforts and effective policing by continuing to create mistrust between law enforcement agencies and minority groups. There does not seem to be any logical reason for preventing ERPA from being passed into law.
The most basic protection for American minority citizens against the use of racial profiling is the 14th Amendment of the Constitution, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and not of the State wherein they reside…nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Despite this equal protection for all races, ethnicities, and religions under the Constitution, multiple Supreme Court cases have diminished this protection. One of the most notable cases was United States v. Brignoni-Ponce (1975). In this decision, the Court held that Customs and Border Patrol (CBP) officers are allowed to consider race and ethnicity when deciding whether to perform a stop near the U.S. border. This decision in addition to the requirement of racial profiling victims to prove that an officer discriminated against them makes many of the Constitutional protections meaningless. It is extremely difficult to prove in court that an officer intended to discriminate against the victim, and because of this, racial profiling near the border goes unchecked.
Another landmark decision by the Supreme Court was Whren v. United States (1996). The Court ruled that it is not unconstitutional to make a traffic stop because they wish to investigate some other crime. This typically would not be legal, because the officer would not possess the “pretext” to stop the individual. This ruling gives law enforcement free reign to pull over any individual due to the infinitely complex traffic laws of the United States. This ruling largely contributes to racial profiling and allows it to continue unchecked.
The use of racial profiling by law enforcement agencies in the United States is not only permitted by the lack of legislation and Court rulings that render Constitutional protection virtually useless, it is also allowed by federal agencies under their procedures and guidelines.
In the FBI’s 2008 Domestic Investigative Operative Guidelines (DIOG), the agency explicitly allows for the use of race, ethnicity, and religion as a factor in determining whether to start an FBI investigation (Rights Working Group). Not only is this a frightening policy, it is a direct violation of both international human rights policies and Constitutional rights.
Although polls suggest that the majority of Americans believe that racial profiling is still widespread and never justified, the problem continues to be unaddressed by the federal government. In 2003, President Bush issued guidelines that “banned” racial profiling throughout 70 federal agencies. However, the reform still allows for racial profiling to be used if the agency deems it necessary based on a potential threat. Essentially, the guidelines that were issued were meaningless. In his Blueprint for Change, President Obama stated that he would put a federal ban on the use of racial profiling by law enforcement. This has yet to be brought up since his election.
The use of racial profiling has been practiced by law enforcement at the federal, state and local levels for generations and it has been proven to be not only fruitless, but also a hindrance to establishing good relationships between law enforcement and minority groups. While the condemnation of its use has at least been acknowledged by the federal government, nothing productive has been done to end the practice. In order to eradicate the use of racial profiling in America, the federal government must ban the practice effectively through legislation and make it easier for law enforcement officers to be for its use.