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Profiling Won't Save Us

Laura W. Murphy,
Director, ACLU Washington Legislative Office
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December 11, 2014

This piece originally appeared on The Hill's Congress Blog.

The Obama administration this week announced new guidance on how federal law enforcement agents may use race and other characteristics, such as religion and national origin, in their work. This was a historic opportunity, at a critical moment, for the president to take a dramatic step forward on civil rights by completely banning racial, religious and other forms of profiling by law enforcement at all levels. Instead, the new guidance offers only modest improvements.

Our Constitution guarantees the law's protection in equal measure to everyone. Yet for too many people this promise is still a fantasy. True, the new rules will prohibit profiling based on national origin, religion, gender, sexual orientation, and gender identity, in addition to race and ethnicity. That's a signal of progress and should be celebrated. However, the new rules remain riddled with exceptions and loopholes that leave many vulnerable to continued biased profiling. As a Latino at a border checkpoint or a Muslim trying to catch a flight, you will be no more protected from the continued insult of unjustified questioning and searches or the routine violation of your constitutional rights today than you were yesterday.

It is deeply unfortunate that the president stopped short of a full ban. The costs of such a move are high and without any real benefits. For, although we live in a world in which law enforcement agencies constantly identify security concerns, we must not forget the lesson that recent history teaches us all too clearly: racial profiling won't save us.

In fact, instead of helping, racial profiling hurts. It harms the relationships between law enforcement and the communities they are sworn to protect, sowing suspicion where trust is urgently needed. And the impacts on targeted communities can be catastrophic.

Take the war on drugs. ACLU ran the numbers on marijuana arrests between 2001 and 2010. We found that, despite roughly equal usage rates, blacks were almost four times more likely than whites to be arrested for marijuana. People of color were disproportionately arrested and imprisoned, and those arrests doubtless shaped their lives long after, making it harder to find work, to vote, to participate fully in society.

Yet we never did win the war on drugs. We haven't even come close. Racial profiling failed, but we kept right on doing it, heedless of the very real costs. Perhaps because those costs were largely borne by people of color and by disempowered communities, they were easier to ignore. But spoken or unspoken, the effects remained.

It's an ugly thing, knowing your country finds you suspicious not because of what you've done but because of crude stereotypes about who you are. As Obama himself noted, "there are very few African-American men in this country who haven't had the experience of being followed when they were shopping in a department store. That includes me."

We have long known that racial profiling is ineffective. That's why Attorney General John Ashcroft banned it back in 2003, albeit with enormous carve outs. He said that, "using race… as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement." This left the government, then and now, in the contradictory position of asserting that racial profiling is abhorrent and unacceptable — except in special cases, where it is suddenly fine.

Racial profiling is wrong. It's wrong whether it's based on race or on other characteristics like sexual orientation, religion or national origin. Racial profiling didn't help us win the war on drugs, and other forms of profiling won't help us address national security concerns.

A national security loophole in the 2003 Ashcroft Guidance allowed federal law enforcement officers to discriminate against America's minorities. And discriminate they did. The FBI, for example, has mapped minority communities around the country based on biased stereotypes, as the ACLU has documented. The FBI has also targeted American Muslim communities based not on evidence of wrongdoing, but because of their ethnicity, national origin, and religion. Law abiding citizens are selected for "voluntary" interviews, pressured by the FBI into becoming informants, or placed on Kafka-esque watchlists without meaningful recourse. The FBI has used informants at community centers, mosques, and other public gathering places and against people exercising their First Amendment right to worship or to engage in political advocacy.

The "border integrity" exception has likewise encouraged Customs and Border Protection to profile all along our borders. CBP refuses to release data that would measure profiling, so local residents in Arivaca, Arizona, decided to monitor a checkpoint themselves. After more than 100 hours of observation over two months, they found that a Latino-occupied vehicle is more than 26 times more likely to be required to show identification than a White-occupied vehicle. And Latino-occupied vehicles were nearly 20 times more likely to be ordered to secondary inspection. A local business owner in Olympia, Washington, said he's "never seen anything like" Border Patrol's racial profiling: "Why don't they do it to the white people, to see if they're from Canada or something?"

The Constitution demands that all citizens, regardless of race, religion or national origin, receive the same legal protections. That is a key part of who we are as Americans. That's why the ACLU and other rights-focused organizations objected so strenuously back in 2003 when the government, while declaring boldly that "racial profiling is wrong and will not be tolerated," insisted on national security and border integrity exceptions to the ban. We continue to object to such carveouts in the context of profiling based on religion, national origin, gender and sexual orientation.

There are no loopholes in the Constitution, and there shouldn't be any in the federal government's rules about racial profiling, either. That's what makes the Justice Department's new guidance so badly incomplete. With this announcement, the Obama administration passed up a chance to finally and fully close the oft-abused loopholes by which the abhorrent practice of biased profiling is allowed to continue so long as national security or border integrity can be invoked in some way. That's a real loss, both for civil rights and for public safety.

The truth is, racial profiling isn't an effective tool. It's a bad, lazy, and an offensive habit. It leaves certain communities feeling constantly victimized, demoralized, and alienated. And it won't protect us. We'll be a better and a safer nation once we fully acknowledge that simple fact.

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