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Banning, yet institutionalizing, racial profiling

by Jack Glaser

Whenever I tell people that I study racial profiling, they exclaim how timely the work is.  It is in fact not so much timely as timeless. It seems like there is always a story involving Black suspects and excessive policing.  When the specifics are shocking, as in the Garner case, and they gain media attention, the public awakens.  But young, Black men are subjected to extra policing on a daily basis.  The cases we hear about are just the tip of the iceberg.  Unnecessary stops of young Black men number in the thousands per day.

With America’s racial wounds laid bare by recent events relating to policing, you might be surprised to learn that no branch of the federal government has set new policy on racial bias in law enforcement for over ten years. Recently, that changed… and yet, it didn’t.

Earlier this month, the U.S. Department of Justice (DOJ) issued a new “guidance for federal law enforcement agencies regarding the use of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity.”  This was the first set of DOJ guidelines addressing biased law enforcement in eleven years. My reaction back in 2003 was that the then-new DOJ guidelines represented a step backward, because the pronouncement of a ban only formalized what had already been a de facto ban and, worse, an explicit pronouncement of an exemption for national security had the ironic effect of institutionalizing racial profiling in federal law enforcement.

Sadly, my reaction this time to the Obama/Holder policy is approximately the same as it was to the Bush/Ashcroft policy.  The new guidelines represent an improvement because they go beyond race and ethnicity (although given recent events I think we all know that racial and ethnically biased policing is the paramount problem).

But, while nodding toward a ban on racial profiling in national security (“This new Guidance applies to Federal law enforcement officers performing Federal law enforcement activities, including those related to national security and intelligence…”), DOJ once again has created a significant loophole in areas that are very much about national security: “this Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.”  This exemption is buried in a footnote, but it has force nonetheless.

Part of the confusion may come from a misunderstanding of the current jurisprudence on racially motivated law enforcement stops and searches.  Indeed, the footnote in the DOJ guidance goes on to indicate that, “All such activities must be conducted consistent with the Constitution and applicable Federal law and policy…”  But the way the Constitution has been applied by the U.S. Supreme Court allows for racial profiling.

This is where the DOJ Guidance gets more ironic.  Citing a relevant Supreme Court precedent, the document states: “The Constitution protects individuals against the invidious use of irrelevant individual characteristics. See Whren v. United States, 517 U.S. 806, 813 (1996).”  To be fair, the majority in Whren did express that sentiment.  But in an opinion as internally conflicted as the new DOJ Guidance, The Court went on to assert that, “We think [past Supreme Court rulings] foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”  The reason the actual motivations (even if they are racial) don’t matter, as The Court sees it, is that as long as a valid, race-neutral reason (a pretext) for a stop exists, that’s good enough.

As a consequence, the Justice Department’s reassurance that the excluded areas (border security, screening, etc.) are still subject to constitutional protections is cold comfort to those who belong to racial or ethnic groups that are suspect.

The Court’s indifference is exactly why we need federal policy.  Unfortunately, even if the DOJ policy wasn’t compromised by this major loophole, it would still only apply to federal law enforcement.  In other words, the new Guidance provides a ban on racial profiling in federal law enforcement only, not a federal ban on racial profiling in law enforcement.  Most American law enforcement is local, and the DOJ does not govern it.

To achieve an effectual national ban on racial profiling, we need federal legislation.  The good news is that that legislation does exist – “The End Racial Profiling Act” or ERPA. More good news is that ERPA does not make these exceptions for border security, screening, etc.  Also promising is that the DOJ Guidance and ERPA align reasonably well in that both call for accountability, data collection, and training.  Neither provides much in the way of specificity on these fronts but, should ERPA pass, the specifics of complying with the law would have to get sorted out.  Now here’s the bad news: ERPA has been introduced in almost every congress since 2000 and has yet to receive even a floor vote in either chamber.

What if anything will open the closed door to ERPA?  As I commuted home from UC Berkeley recently, helicopters hovered overhead while protesters marched the streets.  These protests will pass, but another similar event will replace the story of Eric Garner before long.

Short of a passage of ERPA, which no realistic analyst sees on the horizon, the DOJ should shore up its guidance by closing the loopholes and by specifying mechanisms for data collection, accountability, and training.  In the meantime, 2014 is reminiscent of the misguided attempt of 2003 – in seeking to ban racial profiling the Department of Justice has institutionalized it.