Racial profiling policies
From OpenCongress Wiki
Racial Profiling is the discriminatory practice by law enforcement officials of targeting individuals for suspicion of a crime based on the individual's race, ethnicity, religion or national origin. 
Examples of racial profiling are:
- the use of race to determine which drivers to stop for minor traffic violations,
- the use of race to determine which pedestrians to search for illegal contraband
- the use of race to screen passengers at an airport for potential weapons.
Racial profiling is the inclusion of racial or ethnic characteristics in determining whether a person is considered likely to commit a particular type of crime or an illegal act or to behave in a "predictable" manner. Toward the end of the 20th century in the United States, the practice became controversial among the general public as the potential for abuse by law enforcement came to light.
Civil rights advocates are against the use of racial profiling tactics by the police, as it goes against the Constitution. Conversely, the law enforcement community within the Western world generally supports race as one of the several factors in suspect profiling. The belief is profiling based on any characteristic is a time-tested and universal police tool, and excluding race as a factor is perceived as illogical. Racial profiling has also been seen to occur more frequently in times of threatened homeland security, such as World War II and the attacks on the World Trade Center and Pentagon on Semtember 11, 2001.Historically, racial profiling in the United States has been viewed as an issue that primarily affects African American, Native American and Latino/Hispanic communities. However, since September 11, 2001, some aspects of law enforcement have led to much more widespread racial profiling, affecting Arab American, Muslim American, and South Asian American communities, as well as members of other communities perceived to originate from the Middle East. 
There have been numerous cases, both historially and currently pending that have set precedent and continue to be debated on the subject of racial profiling. On a state level, there is a range of those that ban racial profiling, those that do not, and those that ban only certain aspects. A majority of states however, do NOT have a racial profiling ban on any level.
Implications Under Constitutional Ammendments
It goes against the civil rights and liberites given to citizens of the United States of America under the Constitutional amendments to use racial profiling as a tool for investigation. In the United States, the government does not have the right to allow law enforcement officials to use race as a basis for criminal suspicion in non-suspect specific investigations.
- The Fourth Amendment of the U.S. Constitution, part of the Bill of Rights, guarantees the right to be safe from unreasonable search and seizure without probable cause. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Since people of all races are law-abiding citizens, merely being of a particular race which a police officer believes to be more likely to commit a crime than another is not probable cause enough to use in a targeted search.
- In addition, the Fourteenth Amendment of the U.S. Constitution requires that all citizens be treated equally under the law. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Equal protection Clause, part of the fourteenth amendment, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws". The clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal." has been argued that this makes it unconstitutional for a representative of the government to exclude or make discriminatory assumptions about a suspect based on race.
Arguments Supporting Racial Profiling
- Statistically, or sometimes historically, there have been particular areas, or particular crimes, that have been specifcally more common in a particular race.
- The incarciration rates for some races for certain crimes are much higher than other races.
- Racial profiling can be used as a tool, rather than a conclusion.
- According to certain patterns, racial profiling can be used to narrow down criminal suspects.
- If doctors can profile races, such as suggest African Americans get screened for prostate cancer since they are statistically more prone, than why are law enforcement officals not allowed to racially profile during investigations?
Arguments Against Racial Profiling
- It is unconstitutional and goes against the civil rights and liberies the United States guarantees its citizens.
- Time and again history has proven that race-based policies do not make us safer. In fact, not only do such practices waste limited resources, they make us less safe.
- When law enforcement officials focus on race they overlook other relevant factors in an investigation, making it more likely that a criminal who does not "fit the profile" will go unnoticed.
- Statistically ineffective
- It undermines national unity by targetting specific groups. It also may promote hate crimes towards these pinpointed groups.
Racial Profiling During Times of Threatened Homeland Security
History has shown that racial profiling against Asian Americans is at its highest after times of homeland security being threatened. The two very significant incidents where this has been evident was during World War II and after the 9/11 Attacks. 
World War II
The Japanese American Internment refers to the forcible relocation of over 110,000 Japanese nationals and Japanese Americans. They were compelled to move to “War Relocation Camps” due to Japan’s attack on Pearl Harbor on December 7, 1941. The detention of Japanese Americans was completely applied unequally throughout the United States. All of the Japanese Americans living on the west coast of the US were all detained, however in Hawaii where over 150,000 Japanese Americans made up a third of the population, only 1,200 to 1,800 were interned. Of all those who were sent to these camps, over 62% were United States citizens.
The Executive Order 9066, authorized by President Franklin Roosevelt on February 19, 1942, allowed military commanders to plan “military areas” as “exclusion zones”. This power was used to assert that all people of Japanese ancestry were excluded from the entire Pacific coast (except for those in internment camps). The Supreme Court upheld the constitutionality of the exclusion orders in 1944; but noted that the provisions that singled out people of just Japanese ancestry were a different issue that was outside the realm of the proceedings. It was not until 1988 that it took the United States government to sign a piece of legislation which apologized for the internment of Japanese Americans. The piece of legislation did state that the government actions were based on “racial prejudice, war hysteria, and a failure of political leadership”. $1.6 billion dollar was paid in reparations to those surviving and their families.
Throughout the entire course of the war, 10 people were convicted of spying for Japan. None of them were of Japanese or Asian descent. During this period of the time, Japanese Americans faced major prejudices and were striped of their rights which were guaranteed by the US Constitution. Even after the camps were let out, they continued to face harassment just because of the panic originally created by the government and portrayal of all Japanese and those who looked similar.
History once again repeats itself after the horrific September 11 attacks upon the United States. Numerous incidents of harassment and hate crimes were reported against Middle Easterners and those who looked Middle Eastern, the days following the attacks. There were many reports of verbal abuse, attacks on mosques, and numerous attacks and even murders.
In the hours and days following 9/11 attacks, the Department of Justice started what seemed to be an extensive program of preventive detention. It was the first large-scale detention of a group of people based on origin and ancestry ever since the Japanese American internments. Within hours of the terrorist attacks, federal agents went through Arab, Muslim, and South Asian neighborhoods throughout the country, taking men from sidewalks, homes, workplaces, and even mosques. The Federal Bureau of Prisons had then imposed a communications blackout that hindered the detainees from contacting their family, friends, or their attorneys. In addition, the attorney general ordered that the deportation hearings of immigrants believed of “special interest” to the government should be closed to the public and the press. This concealed all immigration hearings of Arabs and Muslims.
Racial profiling has once again increased due to a surge of panic and fear. Even til date, Arabs and South Asians are constantly being targeted. This is especially visible in airport security. They usually under go extra and special screening, need special identification, and are taken off to different rooms for investigation. There have been numerous accounts of these groups of people being separated or asked to get off a plane, due to the fear of their origin. 
History of Legislation- Key Cases
People vs Brady (1871)
California law before this case specifically mentioned that Chinese people, whether citizens or not, could not testify against a white person in court. This was similar to previous court rulings that said Chinese people were actually Indians; because they were Indians could not testify against any white person. The California Supreme Court decided the 14th Amendment had not been violated in that both Chinese and American victims could both rely on American witnesses but both could not rely on Chinese witnesses. This case made race a factor in the credibility of witnesses.Yamamoto
Yick Wo vs Hopkins (1886)
In 1870 there were around 1,300 Chinese laundrymen in San Francisco which tallied to 12% of the Chinese population. After the railroads had been built Chinese workers often found work opening up Laundromats since it did not require a variety of skills and it was cost effective to start. Suddenly, the city of San Francisco began adopting new policies for laundries specifically to target the Chinese population. Many of these ordinances were considered unconstitutional but some of them stayed. One of these ordinances was that all laundries built out of wood had to have a permit to continue business. 95% of the city’s laundries were operated in wood buildings and two-thirds were owned by people of Chinese descent. Chinese owners were frequently denied permits while non-Chinese owners were granted them. Yick took the case to the Supreme Court which found the ordinance unconstitutional based on the 14th amendment and equal protection clause. Though laws never directly mentioned a specific race, courts ruled them illegal because the spirit of the law was to directly profile and punish a group based solely on race.Yamamoto
Korematsu vs United States (1944)
Fred Korematsu was an American citizen of Japanese descent who knowingly and peacefully violated Exclusion Order 34 and Executive Order 9066 in order to prove his point that the previous legislature was unconstitutional. Korematsu was a resident of California, and under the Exclusion Order, he was not allowed to remain because it was designated a Military Zone due to its proximity to war-time enemy Japan. Moreover he was not allowed to remain because he was of Japanese descent, and the government had determined that all Japanese should submit themselves to the military, and the Relocation Centers. Korematsu felt it was unconstitutional to ask him to relocate based upon his race alone. The Supreme Court ruled that the laws were constitutional and he had to report to the camps. The case has still not been explicitly overturned. This landmark case essentially made racial profiling allowable by the government, under the pretense that it was because of military and “pressing public necessity”.[]
Batson vs. Kentucky 476 U.S. 79 (1986)
James Batson, an African American male, was tried for burglary in Louisville, Kentucky. During the jury selection or “voir dire” both the Defense and Prosecution can dismiss jurors with preemptory challenges. The jurors can be dismissed for any reason when the challenge is invoked. The Prosecution used six of their challenges on jurors, four of which were African American. The Defense moved to dismiss the trial because the jurors were of not a representative mix of the community, a right granted by the 14th and 6th amendments. Batson’s trial was not dismissed, and he was subsequently convicted under a jury of all white persons in the circuit courts and eventually in the Kentucky Supreme Court.
Upon his appeal to the United States Supreme Court, however, it was found 7-2 in favor of Batson that his rights were not correctly protected as they should have been under the 14th amendment. Moreover the Court’s decision set the precedent of lowering the burden of proof to show a juror is excluded solely because of his race (as was previously determined in Swain vs. Alabama 380 U.S. 202 (1965)]. Additionally, a defendant is not entitled to a jury composed completely or partially because of his race (Strauder v. West Virginia), but jurors cannot be excluded from the trial based only on race. Similar cases include: Lynn v. Alabama, 493 U.S. 945 (1989), Tarrance v. Florida, 188 U.S. 519 (1903), and Martin v. Texas, 200 U.S. 316 (1906).
Maryland State Police In "Driving While Black" Case (4/2/2008)
After many African American drivers were wrongfully pulled over and humiliated on Interstate-95, they came together to bring a case against the Maryland State Police. Police troopers were accused of pulling over citizens Verna Bailey, William Berry, Kenneth Jeffries, John Means, Gary Rodwell, and Johnston Willia for no reason besides their black skin color. The ACLU, the ACLU chapter of MD, and the law firm of Hogan & Hartson, LLP represented the plaintiffs and came to a settlement. Among other agreements, the Maryland State Police agreed to pay all legal fees ($300,000), and create a $100,000 consultant position to review cases and procedures of officers to ensure the practice of profiling based on race would discontinue. Moreover any recommendations made by this consultant could not be overturned by the superintendent of the Maryland State Police without reasonable cause.[]
Similar cases such as these exist such as in the instance of Harvard Lawyer Robert Wilkins in the early 1990s. Wilkins, in accordance with his rights, refused consent to a search of his car after being given a speeding ticket by an officer on I-95. The officer searched his car anyway, unlawfully, and found nothing illegal. Meanwhile, Wilkins and his family were humiliated and forced to wait in the rain. Wilkins was searched because he fit the profile of a black male, which police suspected to be more likely to carry drug paraphernalia. Wilkins settled his class action suit against the Maryland State Police in his favor, but cases such as these brought more attention to the topic. []
Current and Pending Federal Legislation
Following the 9/11 attack on the twin towers, racial profiling has become a hot topic. Some fail to acknowledge their use or promotion of it and others work hard to diminish its practice.
Legislation for Racial Profiling
Racial profiling is used in many laws, acts and civil cases. Although it is never forthrightly written out, it is the underlying definition of many cases.
NSEERS (National Security Entry-Exit Registration System) also known as Special Registration, was put in place after September 11, 2001 requiring citizens or nationals of Iran, Iraq, Libya, Sudan and Syria to register with immigration authorities either at a port of entry or designated ICE office in accordance with the special registration procedures.
The Special Registration program has two parts. The first part requires visitors from certain countries, as designated by the State Department to be fingerprinted, photographed and interviewed upon arrival in the United States. The second part requires temporary visitors already in the United States to report to INS offices around the country for registration pursuant to "call-in" procedures designed by the Department of Justice.
When laws such as Special Registration are passed and followed it should be of no surprise that many of the laws, acts, and cases against racial profiling are failing to be passed.
Legislation against Racial Profiling
Racial profiling occurs in a variety of forms. And surprisingly enough there is some legislation that covers certain aspects of racial profiling.
Although there are currently no laws and or acts that specifically ban racial profiling, there have been attempts to ban racial profiling. The End Racial Profiling Act of 2007 (ERPA), S. 2481 would have prohibited law enforcement agents or agencies from engaging in racial profiling. In addition, it would have allowed for individuals injured by racial profiling to bring civil actions for declaratory or injunctive relief. However being introduced on December 13, 2007 and read to the Committee on the judiciary it did not go further. And as the bill was proposed nearly two years ago, it is now deemed as dead. ERPA was not the only attempt to outwardly ban racial profiling, but all other attempts have also been noted ‘dead.’
Guidance Regarding the Use of Race
In June of 2003, the Guidance Regarding the Use of Race by Federal Law Enforcement Agencies was issued; it was only an advisory and therefore never legally binding. The Guidance forbids racial profiling by federal law enforcement officials, but does not cover profiling based on religion, religious appearance, or national origin; does not apply to state or local law enforcement agencies; does not include any enforcement mechanisms; does not specify punishment for violating officers/agencies; and contains a blanket exception for "national security" and "border integrity" cases. 
Future for Racial Profiling Legislation
Hopefully, with the new government in seat, we will see actual legislation that bans racial profiling on every level and ethnic background and nationality. Obama and Biden’s campaign discussed the passing of the Fair Pay Act to ensure that women receive equal pay for equal work and the Employment Non-Discrimination Act to prohibit discrimination based on sexual orientation or gender identity or expression. According to Barack Obama website, “Obama and Biden will ban racial profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.” Listed below are only a few of the current acts and legislation in congress. As realization of racial profiling occurs, it only makes sense that amendments will be made and changes of current legislation will have to happen.
On March 10, 2009, Justice Integrity Act of 2009 was introduced. The purpose of this act is to increase public confidence in the justice system and address any unwarranted racial and ethnic disparities in the criminal process. A similar act was also introduced to the senate in February 2009. The act will work to establish a pilot program in 10 U.S districts to promote fairness in the federal criminal justice system and determine whether legislation is required. In addition a U.S attorney will be designated in each of the districts to implement a plan for carrying out such a pilot program. Data will be collected and analyzed on the race and ethnicity of defendants at each stage of a criminal proceeding and a report and plan to address the disparities will be submitted to the U.S attorney of the district.
Introduced on May 5, 2009, S.972 serves to amend the Food, Conservation and Energy Act of 2008 to provide funding for successful claimants following a determination the merits of Pigford claims related to racial discrimination by the Department of Agriculture.
U.S. States and Racial Profiling
There are currently:
16 States prohibiting racial profiling of both motorists and pedestrians.
- New Jersey
7 States with prohibition of racial profiling of motorists (not pedestrians).
- West Virginia
27 States with no racial profiling ban.
- New Mexico
- North Dakota
- South Dakota
- New York
- New Hampshire
- North Carolina
- South Carolina
Articles and resources
Yamamoto, Eric K et al. Race, Rights and Reparation. Aspen Publishers. New York. 2001. pp 18-84.