The killings of Michael Brown, Eric Garner and other unarmed African American men by police officers have sparked a much-needed national conversation on the urgent need to address biased policing. As U.S. Attorney General Eric Holder prepares to step down, he is determined to make civil rights enforcement and criminal justice reform cornerstones of his legacy as the nation’s 82nd and first African American Attorney General and has said that he will be releasing new guidance on racial profiling by law enforcement. But will he ensure that one of his final acts as Attorney General is a truly meaningful advancement of civil rights?
In 2001, President George W. Bush pledged to end racial profiling by law enforcement. He said, “It’s wrong, and we will end it in America.” His administration would later enact guidance to federal law enforcement agencies banning racial and ethnic profiling. This guidance, however, had serious flaws: federal agents could continue to target Americans based on religion or country of origin and could target any group of Americans so long as the scrutiny was related to border or national security.
Since the issuance of the guidance in 2003, abuse of these loopholes has run rampant and profoundly damaged the lives of thousands of innocent Americans at the border, at the airport, and in day-to-day law enforcement activities in cities and towns throughout the United States.
In 2009, Attorney General Holder ordered an internal review and stated his commitment to ending racial profiling, saying a year later that “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.” The Attorney General has also said that he and President Obama have shared a common vision for creating a more perfect union.
Now, five years later, the Attorney General is expected to announce revised guidance to expand the definition of racial profiling to protect not only racial and ethnic profiling, but also profiling based on religion, national origin, gender, and sexual orientation. While this suggests progress, these reforms must also close the national security and border integrity loopholes.
These two loopholes are broad enough to swallow the rule, permitting profiling in border communities and anywhere that a national security justification can be invoked. For example, Border Patrol agents have boarded buses and trains travelling within 100 miles of the Canadian border, in places like upstate New York, even if the trains and buses did not cross or even approach the borders, asking people for proof of their status and sometimes even searching and detaining them. Similarly, the national security exception allows for continued mapping and massive data collection of innocent communities throughout the country – including information about where they live, work and make charitable donations – not based on evidence of wrongdoing but simply based on race, ethnicity or religion.
At the local level, state and local police receive federal funds and partner with federal law enforcement through Joint Terrorism Taskforces, Fusion Centers, ICE 287(g) agreements, and the Secure Communities program. These partnerships have continued even in jurisdictions where there have been findings of discriminatory policing and even arrests of officers.
That is why it is also crucial that the Attorney General issue a uniform, national standard that applies to state and local law enforcement, as well as federal agencies. The Attorney General can do so by requiring police departments that partner with federal agencies or receive federal funds to adopt the federal standard against profiling. It would be wholly illogical and undermine the federal policy to have local and state police target individuals based on discriminatory criteria, while their federal partners do not.
Race-based assumptions in law enforcement also perpetuate negative stereotypes that send a dangerous message to all Americans: that “the other” is to be feared and targeted. In the last few years alone, according to the FBI, the Latino and Muslim communities have seen a nearly 50 percent jump in hate crimes. Discriminatory anti-immigrant laws like Arizona’s SB 1070 have mushroomed in at least five other states. A strong and comprehensive federal guidance is needed to send a clear message nationwide that bias will not be tolerated in law enforcement.
Some argue that racial profiling is a small price to pay for protecting our nation. This argument, while stoking fear, simply isn’t supported by the facts. There is no singular, accurate profile of a terrorist or drug smuggler, and efforts to anticipate potential terror attacks or drug smuggling based on religious, racial, or country of origin consistently fails to produce accurate targets, while alienating communities and wasting valuable time and resources.
It is time for President Obama and Attorney General Holder to fix an egregious wrong and ensure that all Americans, regardless of race, ethnicity, national origin or religion, are treated equally and fairly by law enforcement. With leadership and courage, they have the opportunity to create a truly lasting and meaningful legacy that will be celebrated by many future generations who will live more free.