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S. HRG. 107–537

S. 989: THE END RACIAL PROFILING

ACT OF 2001

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

FEDERALISM, AND PROPERTY RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

AUGUST 1, 2001

Serial No. J–107–36

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah, 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

RICHARD J. DURBIN, Illinois 

STROM THURMOND, South Carolina 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

MITCH MCCONNELL, Kentucky 

ROBERT SCHIFF, Majority Chief Counsel 

GARRY MALPHRUS, Minority Chief Counsel 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 9

Edwards, Hon. John, a U.S. Senator from the State of North Carolina ............. 22

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 7

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 5

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 5

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 64

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 3

WITNESSES 

Archer, Hon. Dennis W., Mayor, City of Detroit, Michigan, and President, 

National League of Cities; accompanied by Hon. Olden Henson, City Council Member, Hayward, California ........................................................................ 24

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York ..... 16

Conyers, Hon. John, Jr., a Representative in Congress from the State of 

Michigan ............................................................................................................... 11

Corzine, Hon. Jon S., a U.S. Senator from the State of New Jersey ................... 14

Davis, Ronald L., Captain, Oakland Police Department, and Region VI Vice 

President, National Organization of Black Law Enforcement Executives, 

Oakland, California .............................................................................................. 45

Fridell, Lorie, Research Director, Police Executive Research Forum, Washington, D.C. ........................................................................................................... 49

Greenberg, Reuben M., Chief of Police, Charleston Police Department, 

Charleston, South Carolina ................................................................................. 42

Harris, David A., Balk Professor of Law and Values, University of Toledo 

College of Law, Toledo, Ohio ............................................................................... 58

Kelly, Raymond W., former Commissioner, United States Customs Service, 

and former Commissioner, New York City Police Department, New York, 

New York .............................................................................................................. 38

Shays, Hon. Christopher, a Representative in Congress from the State of 

Connecticut ........................................................................................................... 20

Young, Steve, National Vice President, Fraternal Order of Police, Washington, 

D.C. ........................................................................................................................ 30

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Washington, D.C., letter and attachment ....... 77

Angela Davis Cop Watch and the Campaign Against Racial Profiling, Milwaukee, Wisconsin, statement ............................................................................ 85

Asian Emancipation Project: Wisconsin Asian American Women’s Network, 

Madison, Wisconsin, statement and attachments ............................................. 86

Butterfield, Fox, New York Times, July 30, 2001, article .................................... 89

Clegg, Roger, National Review, June 29, 2001, article ......................................... 92

Cole, David and Lamberth, John, New York Times, May 13, 2001, article ....... 93

Derbyshire, John, National Review, February 19, 2001, article .......................... 94

Hispanic American Police Command Officers Association, Washington, D.C., 

statement .............................................................................................................. 98

International Association of Chiefs of Police, Alexandria, Virginia, statement . 98

Kersten, Katherine, Weekly Standard, August 20-27, 2001, article ................... 100

Leadership Conference on Civil Rights, Washington, D.C., July 31, 2001, 

letter ...................................................................................................................... 103

Mexican American Legal Defense and Educational Fund, Washington, D.C., 

July 31, 2001, letter ............................................................................................. 103

Page

IV

Montgomery, Lori, Washington Post, June 28, 2001, article ............................... 105

Morin, Richard and Cottman, Michael H., Washington Post, June 22, 2001, 

article .................................................................................................................... 108

National Association of Police Organizations, Inc., Washington, D.C., statement ...................................................................................................................... 110

National Council of La Raza, Washington, D.C., statement ................................ 112

National Troopers Coalition, Albany, New York, letter ....................................... 119

Sachs, Susan, New York Times, May 1, 2001, article .......................................... 119

Seaton, Jimmy L., Director, Daleville Department of Public Safety, Daleville, 

Alabama, letter ..................................................................................................... 122

Serrie, Jonathan, Fox News, July 27, 2001, article .............................................. 123

Taylor, Stuart, Jr., National Journal, April 24, 1999, article .............................. 124

Tucker, William, Weekly Standard, June 18, 2001, article ................................. 125

Victims of Crime and Leniency, Montgomery, Alabama, July 31, 2001, letter .. 129

Will, George F., Washington Post, April 19, 2001, article ................................... 130 

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S. 989: THE END RACIAL PROFILING ACT OF 

2001

WEDNESDAY, AUGUST 1, 2001

U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10:03 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Russ Feingold, 

Chairman of the Subcommittee, Presiding. 

Present: Senators Feingold, Schumer, Durbin, Edwards, Thurmond, Hatch, and Sessions. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. I call the Subcommittee to order. Good 

morning, all of you, and welcome to the Constitution Subcommittee’s hearing on S. 989, the End Racial Profiling Act of 2001. 

This is the second hearing on the subject of racial profiling that 

this Subcommittee has held in the past 2 years. The first, in March 

2000, was chaired by then-Senator and now Attorney General John 

Ashcroft. Attorney General Ashcroft has said that the hearing was 

instrumental in shaping his view that racial profiling is not only 

wrong, it is also unconstitutional. 

President Bush has also spoken out against racial profiling, first 

during the campaign and Presidential debates, and then in his first 

address to the Congress back in February. There, the President 

said, ‘‘Earlier today, I asked John Ashcroft, the Attorney General, 

to develop specific recommendations to end racial profiling. It’s 

wrong and we will end it in America.’’ Our first hearing on racial profiling focused on the pain and humiliation that Americans who are victims of racial profiling experience and the damage to the trust between law enforcement and the 

community caused by this practice. We heard the personal experiences of three citizens who had been victims of racial profiling, and 

I think their stories are representative of the experiences of thousands of law-abiding Americans. 

One of them that we all remember was Master Sergeant Rossano 

Gerald, a decorated veteran of the Somalia conflict and the Gulf 

War. Sergeant Gerald related a harrowing tale of harassment by 

the Oklahoma State Police when he was driving with his son, Gregory, to a family reunion. As part of his testimony, Sergeant Gerald 

played a short videotape of his son talking about the experience, 

2

and I would like to run that tape now; it is just a couple of minutes 

long. 

[Videotape shown.] 

Chairman FEINGOLD. That incident had a powerful impact on all 

of us who witnessed it. Its effect on children of this practice is obviously one of the things that concerns me the most about racial 

profiling. Some children like Gregory actually witness incidents of 

racial profiling and that can’t help but have a lasting and devastating effect on them. 

But I have also heard from African-American parents that they 

feel that they have to do something that would not even cross the 

minds of most white parents, and that is to instruct their children 

from a very early age about the prospect, and even the likelihood, 

of being stopped by the police when they haven’t done anything 

wrong. That, to me, is a chilling fact. 

Racial profiling leads to our children being taught from an early 

age as a matter of self-protection that they will not be fairly treated by law enforcement based not on the content of their character, 

but instead will be seen as suspicious based on the color of their 

skin. 

A recent Gallup poll found that 44 percent of African-Americans 

believe they have been stopped by the police because of their race 

or ethnicity at some point during their lifetime. A poll conducted 

by the Washington Post, Kaiser Family Foundation and Harvard 

University made similar findings. That poll found that more than 

half of African-American men and one in five Latino and Asian 

men believe they have been the victims of racially motivated police 

stops. Racial profiling is a shame on our society that must be 

stopped. It is unjust, it is un-American. 

When Representative John Conyers and former Senator Lautenberg and I introduced legislation to address this problem last Congress, there were many Americans who were unaware of the practice of racial profiling and others who believed it was lawful or justified. So we introduced a bill that was largely a vehicle to educate 

the public and our government agencies about the problem. That 

bill simply called for the Justice Department to carry out a nationwide study of traffic stops. 

There is no question that some progress has been made over the 

past few years. Because so many victims of racial profiling like Sergeant Gerald and his son Gregory have had the courage to step forward and talk about the anger and the frustration and the indignity of being unfairly profiled, we have now moved well beyond 

where we were a few years ago. With the strong statements of 

President Bush and Attorney General Ashcroft, there is an emerging consensus in America that racial profiling is wrong and it 

should be brought to an end. 

The legislation that Representative Conyers and I have introduced, with at least 15 cosponsors in the Senate and 61 cosponsors 

in the House, would do just that. This legislation is needed because 

Congress has a responsibility to protect the fundamental constitutional rights of all Americans. 

The End Racial Profiling Act bans racial profiling and requires 

Federal, State and local law enforcement to take steps to cease and 

prevent the practice. The bill would allow the Justice Department 

3

or individuals the ability to enforce the prohibition on racial 

profiling by filing a suit for injunctive relief. 

The bill also requires Federal, State and law enforcement agencies to adopt policies prohibiting racial profiling, to implement effective complaint procedures, to implement disciplinary procedures 

for officers who engage in the practice, and to collect data on stops. 

In addition, it provides for data collection to allow Congress to 

monitor whether the steps it has outlined to eliminate and prevent 

racial profiling have been effective. 

Our bill also conditions certain Federal funds to State and local 

law enforcement agencies on their compliance with those requirements. But it also authorizes the Attorney General to provide incentive grants to assist agencies with their compliance with this 

Act. Finally, the bill would require the Attorney General to report 

to Congress 2 years after enactment of the Act and each year 

thereafter on racial profiling in the United States. 

I am very pleased that some of the lead cosponsors of the Senate 

and the House bills are here today with us, and we will hear from 

them shortly. 

The vast majority of law enforcement officers put their lives on 

the line everyday to protect all of us and discharge their duties 

honorably, but we also now know that there are some law enforcement officers who do not. We must work to change the hearts and 

minds, and most importantly the behavior of those officers who engage in racial profiling. 

I am very pleased that a growing number of State law enforcement officials have begun to take steps to address the problem of 

racial profiling, including in my own State of Wisconsin. Many of 

them also understand that this bill will complement their efforts 

and is necessary if we are truly going to end racial profiling in 

America. 

I understand that the Department of Justice has not yet taken 

a position on the bill. But given the President’s and the Attorney 

General’s strong comments, and the fact that Assistant Attorney 

General for Civil Rights Ralph Boyd is beginning work this week, 

Representative Conyers and I, as well as Senator Clinton and Senator Corzine, whom I have worked with closely, look forward to a 

productive dialog with the Department. We hope ultimately, of 

course, to gain the administration’s support for this bill and to 

work together to enact it into law during this Congress. 

So, again, I want to welcome the witnesses. I look forward to 

your testimony. 

Now, I would like to turn to the distinguished Ranking Member 

of the Subcommittee, Senator Strom Thurmond, for his opening remarks. I thank the Ranking Member for his cooperation in putting 

this hearing together. 

Senator Thurmond? 

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR 

FROM THE STATE OF SOUTH CAROLINA 

Senator THURMOND. Thank you, Mr. Chairman. I appreciate your 

commitment to the issue of racial profiling. It is clearly unconstitutional for law enforcement to stop or search people solely because 

of their race, and this cannot be tolerated. However, there is wideVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
4

spread agreement that the vast majority of law enforcement officers are dedicated professionals who act without bias of any kind. 

I am concerned that the legislation we are considering today proposes a solution that is based on lawsuits and Federal mandates 

that would micromanage law enforcement at all levels. While I respect the chairman’s intentions, I do not believe that this is the 

right approach. 

Last year, members proposed a Justice Department study of traffic stops to better understand this issue. Attorney General Ashcroft 

supports such a study and is actively reviewing all Federal law enforcement practices in this area. The Justice Department is also 

providing grants to law enforcement in many related areas, such 

as for the installation of video cameras in police cars. I think there 

is bipartisan support for this type of approach. 

I am afraid that this bill would handcuff the vast majority of police on the Federal and State levels who treat all citizens fairly and 

equally. We should not make the fight against crime harder to win. 

I appreciate our witnesses being here today to discuss this important topic. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Thurmond follows:]

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH

CAROLINA

Mr. Chairman: 

I appreciate your commitment to the issue of racial profiling. It is clearly unconstitutional for law enforcement to stop or search people solely because of their race, 

and this cannot be tolerated. 

However, there is widespread agreement that the vast majority of law enforcement officers are dedicated professionals who act without bias of any kind. There 

is no consensus on how common the problem is, and we are still trying to understand how to measure this complex issue and interpret the data that is being collected. We need to learn much more about racial profiling before we develop sweeping solutions that reach across every aspect of law enforcement on the federal and 

state levels. It is hard to conclude that current efforts across America to address 

racial profiling are inadequate when we are still learning what they are. 

I am concerned that the legislation we are considering today proposes a solution 

that is based on lawsuits and federal mandates that would micromanage law enforcement at all levels. While I respect the Chairman’s intentions, I do not believe 

that this is the right approach. 

Last year, members including the current Chairman proposed a Justice Department study of traffic stops to better understand this issue. Attorney General 

Ashcroft supports such a study, and is actively reviewing all federal law enforcement practices in this area. The Justice Department is also providing grants to law 

enforcement in many related areas, such as for the installation of video cameras in 

police cars to record traffic stops. I think there is bipartisan support for this type 

of approach, which we could enact without further delay if all of us on the Committee worked together. 

The legislation we are considering today is very different from the approach that 

was promoted just last year. We must keep in mind that the question is whether 

any person is discriminated against because of his or her race, but the bill goes far 

beyond this worthy goal. It defines racial profiling so broadly that it will interfere 

in legitimate law enforcement efforts to locate and apprehend criminal suspects. 

Also, in its effort to promote lawsuits, it creates legal presumptions that make law 

enforcement officers prove that they are innocent, making lawsuits much easier. 

Discrimination should not be assumed simply based on statistics that show a racial 

disparity in a given population. In any event, lawsuits are already an option today 

for unconstitutional racial profiling even without this legislation. 

I do not believe we should view lawsuits as the favored way to solve problems 

in America, and this issue should be no exception. More lawsuits will not promote 

cooperation and the search for common ground; they will discourage it. Moreover, 

5

lawsuits will divert scarce law enforcement resources away from solving crime and 

into the pockets of lawyers. 

Further, the bill would take much-needed federal grants away from states and localities if they do not fall in line with federal mandates. We should help states in 

their legitimate, innovative efforts to address this issue, but we should not micromanage them from Washington. 

I am afraid that this bill would handcuff the vast majority of police on the federal 

and state levels who treat all citizens fairly and equally. In the past few years, law 

enforcement has started to turn the tide against violent crime and drugs in America. This is evident in many predominately minority communities, where the citizens have demanded that the police help them take their streets back from the 

criminal element. We should not act in such a way that we reverse this success, 

even unintentionally. We should not make the fight against crime harder to win. 

I appreciate our witnesses being here today to discuss this important topic.

Chairman FEINGOLD. I thank the Ranking Member. 

I have received a statement from one of our cosponsors, Senator 

Kennedy, who is also a member of the Committee and the Subcommittee who could not be here. I ask unanimous consent that his 

statement be placed in the record, without objection. 

[The prepared statement of Senator Kennedy follows:]

STATEMENT OF EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF

MASSACHUSETTS

Mr. Chairman, I agree with the President and the Attorney General that racial 

profiling is wrong, and we must do all we can to end it. Racial profiling is a gross 

insult to American ideals and the American dream. No one anywhere in America 

deserves to be stopped, searched, or harassed because of the color of his or her skin. 

The End Racial Profiling Act is a strong and needed response to this problem. The 

bill prohibits racial profiling, and provides for the collection of data on traffic stops 

to make sure that the practice is rooted out wherever it occurs. The bill also authorizes incentive grants to help state and local police agencies develop more effective 

and fairer policing practices. 

This bill will strengthen law enforcement. As Commissioner Kelly will testify, the 

practice of racial profiling threatens the ‘‘very compact of trust and fairness’’ between government and the people. Police officers are indispensable public officials 

whose dedication and courage deserve our highest respect. By eliminating the practice of racial profiling, this bill will enhance the stature of police officers across the 

country and their ability to serve and protect the public. 

I commend Senators Feingold, Corzine, and Clinton, and Representatives Conyers 

and Shays, for their leadership on this issue. All of us are encouraged by the strong 

statements by President Bush and Attorney General Ashcroft against racial 

profiling in recent months. This important legislation deserves to be enacted into 

law as soon as possible. 

I appreciate your commitment to the issue of racial profiling. It is clearly unconstitutional for law enforcement to stop or search people solely because of their race, 

and this cannot be tolerated. 

However, there is widespread agreement that the vast majority of law enforcement officers are dedicated professionals who act without bias of any kind. There 

is no consensus on how common the problem is, and we are still trying to understand how to measure this complex issue and interpret the data that is being collected. We need to learn much more about racial profiling before we develop sweeping solutions that reach across every aspect of law enforcement on the federal and 

state levels. It is hard to conclude that current efforts across America to address 

racial profiling are inadequate when we are still learning what they are.

Chairman FEINGOLD. I now turn to another member of our Subcommittee and one of the coauthors of the bill, Senator Schumer, 

of New York. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Well, thank you, Mr. Chairman, and I want 

to start by thanking you not only for holding this hearing but for 

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making this the strong cause that you have made it, not even in 

this session of the Senate but those that go much further back. I 

am proud to cosponsor S. 689. 

I also want to really commend my fellow Senator from New York, 

Senator Clinton, who has been a leader on this issue from the first 

day she got here. She campaigned on the issue and rolled up her 

sleeves and got to work by working with you on this issue. Her energy has been terrific and really helped drive the debate on this extremely important subject. 

The same is true of Senator Corzine, who also talked about this 

issue in his campaign—we get New Jersey television in New York, 

so I saw that—and has again proceeded with the same diligence. 

So I think it is a great team to be here, and I am proud to be a 

cosponsor of the bill. 

Mr. Chairman, our Constitution, our laws, our oldest traditions 

and our highest ideals dictate that, in America, justice is blind. 

Yet, irrefutable evidence has accumulated over the years that law 

enforcement officers, the gateway to our justice system, have all too 

often made decisions about who to look for, who to stop, who to 

search, and who to arrest on the basis of what people look like instead of what they are doing. 

I have always been a big supporter of the men and women in 

blue who do the critical and dangerous work of keeping us safe, 

and I do not believe that there are disproportionate numbers of racists or bigots in the ranks of our police. I don’t think anyone here 

is suggesting that. 

The problem of racial profiling is a problem of systematic law enforcement procedures that use race as a proxy for probable cause. 

They use as a proxy for probable cause, and when you think about 

it, that is a horrible thing. In some ways, the problem is even more 

difficult to address because it runs a lot deeper than just a handful 

of bad-apple officers in the sense that it is endemic in our society. 

Still, we have no choice but to tackle it. 

Those of us who have been fortunate enough to have never experienced this phenomenon can only imagine what it is like, and the 

tape that you showed, Mr. Chairman, brings it to life much better 

than in any way I could characterize. I have talked to people about 

this, young men, young women, who are trying extra hard to be 

model citizens. 

I will never forget my law professor at Harvard University told 

us a story—and this was, I hate to say it, 27 years ago—of how he 

was stopped in the suburbs of Lexington, Massachusetts, regularly 

and searched because there were so few black people living in that 

suburb. So the feelings of rage, of helplessness, of total 

marginalization you would have if you had been pulled over, even 

though you had nothing to arouse legitimate suspicion, are enormous. 

Four of out ten African-Americans report they have experienced 

exactly those emotions, because that is the number who say they 

have been unfairly stopped by the police for no other reason that 

skin color. And the problem isn’t limited to so-called ‘‘driving while 

black.’’ Latino Americans face a double whammy, first, of being 

profiled as law-breakers and, if that doesn’t hold up, as illegal immigrants. 

7

Most amazing of all, we now know that racial profiling, in addition to being both immoral and unconstitutional, doesn’t even work 

on its own terms. The data that has come from Maryland, New Jersey and other States that have been collecting data show that the 

profile turns out to be wrong. Stopping greater numbers of minorities doesn’t lead to greater apprehension of criminals. 

Mr. Chairman, your bill recognizes this. It bans racial profiling 

without handcuffing police, it provides for greater collection of data 

on searches and detentions, and it authorizes grant funding for better training on cross-racial encounters, new technology, and better 

verification procedures. Its theme is to work with law enforcement, 

not against it, to solve this problem, and that is a key. 

In the final analysis, our system of justice has no more sacred 

obligation than ensuring equal justice under the law. We are taking another step toward fulfilling that duty today, Mr. Chairman, 

and I want to commend you and Senators Clinton and Corzine for 

your work and accomplishment. 

Chairman FEINGOLD. I thank the Senator from New York. 

I now turn to the Ranking Member of the full Committee, Senator Hatch, for an opening statement. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman, for allowing me 

to make some opening remarks upon the convening of this important hearing. 

Racial profiling is an issue that has generated widespread public 

concern. Fortunately, unlike many of the issues we confront here 

in Washington, there has emerged a consensus concerning the fundamental point of the debate. Racial profiling, also known has biasbased policing, is wrong, it is unconstitutional, and it must not be 

practiced or tolerated. Mr. Chairman, you and I, the President, the 

Attorney General, and indeed every Member of Congress would 

agree that law enforcement activity must never be undertaken because of one’s race. 

Many have strong and diverging views, however, concerning how 

best to address this problem at this time. Today, we will hear some 

of those views from our witnesses and we should listen to them. 

Given this lack of consensus, political and community leaders must 

act prudently and responsibly in addressing this issue, for the 

stakes are quite high. 

Under no circumstance should we allow this to become a political 

issue mired in partisan politics. The policy decisions we make in 

this area could well have a profound effect on policing in America. 

And as many of us know, the resulting costs to public safety are 

all too often felt in those communities that can least afford the carnage. 

Witness, for example, what happened in Cincinnati, Ohio, over 

the last few months as the police have retreated from minority 

neighborhoods in the face of accusations of racism: 59 shooting incidents in the city, with 77 gunshot victims, compared with 9 shootings and 11 victims in the comparable 3 months last year. All but 

one of the victims has been African-American. 

8

In my view, S. 989, the End Racial Profiling Act of 2001, though 

well-intentioned, is the wrong approach at this time. The provisions 

of the legislation suffer three flaws, as I view it: they are unnecessarily controversial, they are unjustifiably punitive to State and 

local authorities, and, above all, I believe they are premature. 

First, the legislation plunges into the hornet’s nest of controversy 

with, among other things, its definition of ‘‘racial profiling.’’ As will 

become abundantly clear when our second panel begins testifying, 

there is no widely accepted definition of this term, and police organizations, community leaders and academics disagree even among 

themselves about what is or is not permissible police activity. Before stamping a label on certain police activity, we ought to at least 

identify the activity in question. 

Compounding the problem concerning the definition of racial 

profiling, the legislation provides for lawsuits by persons who believe that they have been profiled. To bring such a lawsuit, such 

a plaintiff need only show ‘‘proof that the routine investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on racial or ethnic minorities.’’ Thus, mere evidence 

of disparate impact is evidence of a violation of this Act. Yet, there 

is no definition of what is or is not a disparate impact. Is 51 percent to 49 percent sufficiently disparate, or must it be something 

more substantial? Does it mean that any policy that happens to impact adversely must be eliminated? 

While the bill allows a plaintiff to sue only for declaratory or injunctive relief, not damages, entire police departments could be tied 

up in litigation even when there is no proof of intentional discrimination. Creating a litigation nightmare for law enforcement will 

unfairly drain community resources, divert manpower, and further 

foster an ‘‘us versus them’’ mentality. Instead, we should focus on 

encouraging positive relationships between law enforcement and 

the communities they serve. 

Finally, supporters of the legislation fail to justify the need for 

these types of measures. Indeed, just last year we were exploring 

ways to encourage the Federal, State and local authorities to gather and study data to determine the prevalence of racial profiling. 

Yet, here we are today, a little more than 1 year later, considering 

legislation that, in effect, assumes that racial profiling has infected 

every police agency in this country. 

Out of fairness to our Nation’s police officers, and out of concern 

for our citizens’ safety, we should be cautious about proceeding in 

this manner. Let me suggest, then, that at this point in the debate 

we focus on identifying the scope of the problem. Let us follow the 

lead of the Attorney General, who has committed the Department 

of Justice to gathering and analyzing data, and his civil rights 

chief, Ralph Boyd, Jr., who has publicly pledged to examine that 

data, train and monitor local police, and bring lawsuits whenever 

appropriate. 

For our part here in the Congress, let us also suggest a return 

to the legislation that you, Mr. Chairman, cosponsored last Congress, the Traffic Stops Statistics Study Act. That, in the view of 

many, including the American Bar Association, constitutes the appropriate point of departure in this debate. And as Professor Harris, one of today’s witnesses, testified before this Subcommittee last 

9

year, ‘‘data collection...is surely the first step on [the] long road’’ to 

addressing this issue. 

That approach has the added virtue of having been endorsed by 

Attorney General Ashcroft. He has on several occasions indicated 

his strong support for the Traffic Stops Statistics Study Act. He did 

that on the Committee, when he was a member of this Committee, 

and he is doing it as Attorney General. He has informed us that 

he is prepared to move forward in gathering and studying such 

data. 

You may recall that in February of this year, the Attorney General wrote me and urged the Judiciary Committee to promptly consider moving legislation along the lines of the Statistics Study Act. 

I would hope that as we continue to debate the necessity of S. 989, 

we at least move forward on legislation that will assist the Attorney General’s efforts. I believe that legislation would go through 

both Houses of Congress quite fast, and it should. 

Thus, Mr. Chairman, while I cannot support the legislation that 

is the subject of today’s hearing, I pledge to work with you. You 

do a great job. You are very sincere and you are a very knowledgeable member of this Committee. I pledge to work with you to ensure that the Department of Justice obtains the data we need for 

a thorough, fair-minded examination of police practices in this 

country. In the meantime, let us be careful not to impugn the men 

and women who daily put their lives on the line for all of us. We 

must never forget that the vast majority of them serve their communities with distinction and with honor. 

I want to thank you, Mr. Chairman. I look forward to learning 

from our witnesses today and I appreciate you allowing me to make 

this statement. 

Chairman FEINGOLD. I thank you, Senator Hatch, and I do appreciate the offer to work together on this. I will say just in reference to one of your remarks that there is absolutely nothing in 

our bill or in our intent or in our actions that suggests that we assume that racial profiling exists in all police departments. We don’t 

believe that, it isn’t true, and that isn’t our position. 

Senator HATCH. That is good. 

Chairman FEINGOLD. But other than that, I do look forward to 

addressing each of those points. Thank you, Senator Hatch. 

Now, I would like to turn to Senator Durbin, who not only is a 

strong cosponsor of this bill, but has also initiated other efforts on 

this general issue of racial profiling. 

Senator Durbin? 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Mr. Chairman, and thanks for this 

hearing on the End Racial Profiling Act. I am proud to be an original cosponsor of this legislation. 

From the earliest days of our Nation, we have struggled with the 

issue of race. Despite all of our progress, there is grim evidence 

that justice in America is far from color-blind. 

Racial profiling is a serious problem that appears to be particularly salient in the enforcement of our Nation’s drug laws. Consider 

these numbers: African-Americans represent 12 percent of the 

10

American population, 13 percent of its drug users, but 35 percent 

of those arrested for drug possession and 55 percent of those convicted of drug possession and over 60 percent of those incarcerated 

for these crimes. This the reality of racial disparity in America’s 

criminal justice system, despite the fact that five times as many 

whites use drugs as African-Americans. 

In my home State of Illinois, the situation sadly is even worse. 

Ninety percent of drug offenders admitted to Illinois prisons are African-Americans, the highest percentage in the country. And consider this statistic: for every 100,000 white male adults in Illinois, 

20 were sent to prison for violating drug laws. For every 100,000 

African-American adult males in Illinois, 1,146 were sent to prison, 

a rate 57 times higher. 

According to the Sentencing Commission, which tracks and analyzes criminal justice statistics, approximately 32 percent of black 

men aged 20 to 29 are incarcerated, on probation, or on parole. 

Compare this to 1 in 15 of white men in the same age range. These 

disparities do not reflect who uses or sells drugs, but who is 

stopped and searched. Racial profiling played a role in producing 

these statistics, and as a result it has helped to erode the credibility of law enforcement that the majority of our men and women 

in blue bring to this noble profession. 

The U.S. Customs Service has the difficult task of enforcing drug 

laws at our borders. A few years ago, I learned that women of color 

were being inappropriately and disproportionately targeted for 

strip searches and x-ray searches by the U.S. Customs Service officials in Chicago. I ordered a GAO study and found that there was 

literally no connection between the women who faced this 

humiliating experience in Chicago’s airport and the effort to stop 

drugs coming into America. With that data, I introduced legislation, the Reasonable Search Standards Act, S. 799. 

Commissioner Ray Kelly is here today and he is going to testify. 

Before he left the U.S. Customs Service, he did an extraordinary 

thing. He didn’t argue about our findings, he didn’t demand more 

evidence, he didn’t ask that we sue him. He made a difference, he 

changed the policy. He prohibited searches based on race. He requested and demanded the documentation of reasons for a search, 

and he trained the personnel at the Customs Service about search 

procedures. 

Customs data shows that these changes that Commissioner Kelly 

on his own initiative put in place resulted in a significant decrease 

in the number of minorities searched and a dramatic increase in 

the number of positive searches yielding drugs. Body searches were 

slashed by 80 percent. There was an increase in drug seizures of 

38 percent. This is strong evidence that good police work can spare 

people of color the indignity of criminal suspicion. 

I am glad you are here, Commissioner Kelly, and I am looking 

forward to your testimony. I am sorry you are no longer at the Customs Service, but I hope that we can implement legislation that 

made your forward-looking rule changes permanent law in this 

country. 

Each of us will join in some resolution at some point to condemn 

racial profiling. I guess the ultimate responsibility we face is 

11

whether or not we are prepared to make those changes in the law 

that will end racial profiling. 

Senator Feingold, your bill is a good step in that direction. Thank 

you for this hearing. 

Chairman FEINGOLD. Thank you so much, Senator Durbin, for 

your words and your actions in this area. 

Now, I am very pleased that we can call our first panel of witnesses. Let me first thank you for your patience. As you know, it 

is rare to have this number of opening statements at a Subcommittee, but it is a good sign that there is tremendous interest 

on this Judiciary Committee on this issue and the Senate is going 

to take it very seriously. 

I am very pleased to have distinguished members of both the 

Senate and the House on hand to testify today. The development 

of the End Racial Profiling Act has been a bicameral effort from the 

start, and that is reflected in our first panel. 

The customary protocol for such panels is for Senators to testify 

before House members, but with the indulgence of my colleagues 

from the Senate, I would like to first call on Representative John 

Conyers, of Michigan, who has been the leader in the fight on this 

issue long before most Americans had even heard the term ‘‘racial 

profiling.’’ Of course, he is the Ranking Member of the House Judiciary Committee and the second-longest-serving member of the 

House of Representatives. Then we will hear from Senator Corzine 

and Senator Clinton and, after them, from Representative Shays. 

It has been, Representative Conyers, a great honor and a privilege to work with you on this issue during the last two-and-a-half 

years. I am grateful to you for taking the time to join us today and 

you may proceed with your testimony. 

STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Representative CONYERS. Thank you, Chairman Feingold and 

members of the Subcommittee and my friend, the former chairman 

of the full Committee, Orrin Hatch. I am delighted to be here. 

I was instructed to come over here and not break protocol, no 

matter what I did. This is a case of the last shall be first, and I 

am flattered, grateful and happy to be here with this very distinguished panel. 

Then you put on my Mayor of the city of Detroit. I am now coming before him on top of it. Thanks a lot, Chairman Feingold, you 

really know how to fix me up at home and on the other side of the 

Hill. 

I am in great spirits today because several Congresses ago we 

started this discussion of racial profiling, and I must tell you that 

there are very few subjects that have caught on, taken on a life of 

their own and come into the public screen to such an extent that 

we are all brought here today. 

We are here because the President of the United States has 

asked us to get a bill together and bring to him because he wants 

to end racial profiling. I am not sure how many definitions are 

floating around out there, but I can tell you one thing: racial 

profiling violates the equal protection clause. You cannot stop, detain or arrest people because of the color of their skin, ethnicity or 

12

national origin. It is as simple as that. That is a good starting point 

for any legal analysis. 

Number 2, I just want to be put on the record as stating that 

there are so few African-American men who have not experienced 

racial profiling or know someone who has that you could put them 

all inside the space between this dais and where you are. It has 

happened to everybody, and so I will set the record straight so nobody has to ask me, has it happened to me. Yes, it has happened 

to me. It happened to me, though, before I became a Congressman. 

Actually, in all due respect to all of our police, I think I get the 

benefit of the doubt. But when I was a lawyer, Mayor Archer may 

remember, that there was a Detroit policeman they called Texas 

Slim, and I always ended up in criminal court. On night he was 

following me down Linwood. What would he be doing on Linwood, 

in Detroit, in the evening? I got a ticket because the light that illuminates my back plate was not working. That is what he ticketed, 

and he did it with a straight face and it was strictly business. I 

was not offended. I did not ask him any questions or make any protests. 

But for most other people, this is an incredibly searing experience. What if you lived in Detroit right at the border of Dearborn. 

In Detroit—most of you know where that is—you have to go 

through Dearborn to get to your house at night and you get 

stopped on an average of once every 2 weeks? I mean, you know 

the police officers and they know you at this point. 

This is one of these little issues that has been eating away at 

people, and in the finest sense of being constructive legislatively we 

have put together this very modest proposal. I can tell you our 

staffs will begin meeting with the Attorney General’s staff this 

week or next week. The cooperation has already begun, I am happy 

to say. 

I want to just put to rest that this legislation does not allow individual suits for money damages. First of all, anybody that has a 

beef against any kind of law enforcement or municipality, county, 

State or Federal, can sue individually right now and 42 U.S.C. 

1983. However, there are a lot of immunity problems they have to 

get over, but this legislation, does not authorize one single suit at 

all for money damages. This is a bill that asks the Federal, the 

State, the county and the city law enforcement agencies to begin 

to keep records about racial profiling, and that we will support 

them if there are any problems about how we should go about it. 

We would be very happy to help fund data collection and other policies that help end the practice. 

Most police chiefs have told me already that 99 percent of any 

information is already on a traffic ticket, but suppose a person is 

stopped and there is no ticket. Then we have to make sure we keep 

track of it. So we are following this in, I think, a very excellent 

way. 

Senator Feingold, I have to single you out as one who has really 

moved in a very reasonable way, and the leadership you have 

shown here is really commendable. So I am happy to join with you 

in this discussion. 

Let me point out it was when Senator Ashcroft was chairing one 

of these Committees that we had the first hearings on racial 

13

profiling in the U.S. Senate. He is the one who has called me to 

say I want to work with you; get us some legislation, let’s get going 

with it. The President of the United States has also said that. I 

think we could not be off to a smoother and better start. 

Now that we have admitted Laura Murphy, of the ACLU, into 

the hearing room, I can sleep more comfortably tonight, and so can 

you, Chairman Feingold. Reverend Wendell Anthony, the chairman 

of the Detroit Chapter of the NAACP, sends his congratulations to 

you. 

Thank you for allowing me to begin this testimony. 

[The prepared statement of Representative Conyers follows:]

STATEMENT OF HON. JOHN CONYERS, JR., A U.S. REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN

I want to start this morning by thanking Senator Feingold for making the issue 

of Racial Profiling a priority in the Senate Judiciary Committee. He is certainly no 

stranger to this issue and has walked with me every step of the way in pursuing 

legislation that will bring the practice of racial profiling to an end. I am glad to see 

strong bipartisan support of racial profiling legislation around the nation and firmly 

believe that the time is ripe for the passage of federal legislation. 

Since I first introduced racial profiling legislation in the 105’ Congress, the pervasive nature of racial profiling has gone from anecdote and theory to well-documented 

fact. Data collected from numerous states show beyond a shadow of a doubt that 

African-Americans and Latinos are being stopped for routine traffic violations far 

in excess of their share of the population or even the rate at which such populations 

are accused of criminal conduct. 

Most fundamentally, racial profiling has not proven an effective tactic for fighting 

crime. A recent Justice Department report found that although African-Americans 

and Hispanics are more likely to be stopped and searched by law enforcement, they 

are much less likely to be found in possession of contraband. This pattern of overinclusive stops and detentions lies at the heart of the breakdown of trust between 

police and communities. 

Although the vast majority of law enforcement agents nationwide discharge their 

duties professionally and without bias, we as a nation should not tolerate discrimination by a small minority of police officials. Racial profiling is a double-barreled 

assault on our social fabric. Nearly every young African-American and Hispanic 

male has been subjected to racial profiling or has a family member or close friend 

who has been a victim of this injustice. 

Racial profiling sends the message to young African-Americans, Hispanics and 

other minorities that the criminal justice system, and therefore the system at large, 

belittles their worth. More broadly, it causes a breakdown of the trust on which 

community policing depends. Unless that trust is built and nurtured, the police can’t 

do an effective job of protecting our communities and it makes an already difficult 

job more dangerous. 

The End Racial Profiling Act reflects changes in the legal and political climates 

that have occurred since traffic stop data collection legislation was offered during 

the 106’ Congress. Since that time, statistical evidence from around the country has 

indicated data collection alone is not enough to arrest the racial and ethnic disparities in stops and detentions. In Maryland, for example, even after litigation and 

data collection, the pattern of disparities in traffic stops has persisted. This is why 

our bill includes a ban on racial profiling. 

No American should walk through any city, drive down any road or travel 

through any airport, looking over their shoulder and waiting for the inevitable police 

stop. While this legislation may not stop racial profiling tomorrow, it will send the 

message that the federal government is committed to the equal protection of civil 

rights and begin a comprehensive process of rooting-out bias in law enforcement.

Chairman FEINGOLD. Thank you. We are so fortunate to have 

you as our leader on this issue, and thank you for coming over. 

Now, I am awfully happy to turn to two Senators who came here 

this year to the Senate and immediately indicated that they wanted to work on this, and work on it everyday, and that is exactly 

what they have done. 

14

First, we will turn to Senator Jon Corzine, of New Jersey. Senator Corzine brought up the issue of racial profiling in our very 

first meeting when he came to the Senate. He told me that ending 

racial profiling was one of his highest priorities, and has consistently pressed for the toughest, most comprehensive bill we can 

pass. 

Senator Corzine, thank you for all your work. The floor is yours. 

STATEMENT OF HON. JON S. CORZINE, A U.S. SENATOR FROM 

THE STATE OF NEW JERSEY 

Senator CORZINE. Mr. Chairman, I am truly pleased to be here 

to speak on this issue that is so important to both my State and 

the Nation. I also want to thank you for your very thoughtful and 

strong leadership on this issue. I want to thank Senator Clinton, 

who from the very first day, as you suggested, has talked about 

this with you, myself and others, making this a top priority. 

I also am extraordinarily grateful for the leadership in the House 

of Representatives. Congressman Conyers has been a hero on this 

for as long as this has been an issue. We look to him for guidance 

and he has been terrific. Congressman Shays and others have also 

stood up for what is right. Particularly, I want to note two New 

Jersey Republicans who have stood up on this issue, Congressmen 

Frelinghuysen and Ferguson, who are cosponsors. This is truly 

something that people recognize as a bipartisan initiative. 

The practice of racial profiling, Mr. Chairman, is the antithesis 

of America’s belief in fairness and equal protection under the law. 

Stopping people on our highways, on our streets and at our borders 

because of the color of their skin really tears at the fabric of what 

we are about as a Nation. Our nation is built on the premise that 

we are all created equal. Racial profiling undermines that principle. It is morally and constitutionally wrong. 

But not only is it wrong, it is an ineffective law enforcement tool. 

As Senator Schumer noted, there is no evidence that stopping people of color adds up to catching bad guys. In fact, statistics show 

that singling out black or Hispanic motorists for stops and searches 

does not lead to a higher percentage of arrests. 

Mr. Chairman, racial profiling has been a longstanding, serious 

concern in New Jersey. Yet, it took a tragedy on the New Jersey 

Turnpike to really focus our attention on the problem and motivate 

action. In 1998, four young African-American men were driving on 

the turnpike on their way to North Carolina, hoping to get a college basketball scholarship. Two State troopers pulled them off the 

road and the frightened driver lost control of the van. Dozens of 

shots were fired. Three out of the four kids were shot. Fortunately, 

all survived. 

After an extensive investigation, one State trooper was charged 

with aggravated assault and another with attempted murder. The 

two officers’ records of previous investigatory stops had shown a 

pattern of race-based interventions. 

Unfortunately, the shooting of these young people was just the 

tip of the iceberg. In 1999, the State attorney general found that 

for years State troopers had practiced racial profiling on the New 

Jersey Turnpike, stopping individuals for routine investigatory activities based on their race. 

15

Around the same time, the Justice Department came to New Jersey to investigate the allegations and established a consent decree 

with the State requiring the State to institute a number of important reforms, including new training programs, strong oversight 

procedures, hiring of additional minority officers, and collection of 

statistics to monitor progress. Then-Governor Christine Todd Whitman concurred with the decree and its remedies. 

Fortunately, despite our historic failures on the subject, New Jersey responded in a thoughtful, bipartisan manner. The Governor 

and newly appointed attorney general worked diligently to implement the consent decree. The Black and Latino Caucus held public 

inquiry into racial profiling, documenting its history and prevalence. The Senate Judiciary Committee, chaired by a Republican, 

probed how top officials handled racial profiling by the State police 

and proposed a series of added safeguards, including banning socalled consent searches. 

Racial profiling is an important issue in New Jersey, but it is 

also a national problem. This hearing will make that clear, and I 

think Senator Durbin’s statistics are very telling. In fact, I hope 

that New Jersey can be a model on how to respond, if not when 

to respond. 

In my home county, Union County, New Jersey, county prosecutor Tom Manahan, again a Republican, worked closely with the 

chiefs of police in our county to develop a set of policies that will 

foster greater accountability among police officers and deter them 

from using race as a reason to stop civilians. They also established 

a whole series of monitoring and data collection procedures that 

will be tremendous indicators. 

Unfortunately, despite the growing recognition that racial 

profiling exists and is wrong, we still have a lot of work to do. In 

New Jersey, our statistics haven’t changed even though there has 

been this very visible discussion of the problem, and anxious actions taken to remedy it. 

A recent survey of police officials across the Nation found nearly 

60 percent of police officials say racial profiling is not a problem 

in their community. Fewer than 20 percent have adopted policies 

to outlaw the practice. Clearly, it is hard to solve a problem if you 

don’t see it as a problem. We need to move on this. I think this 

legislation is a major step, a next step in America’s continuing 

struggle to provide civil rights for all Americans. 

I am not going to go through the legislation because you have 

outlined it, but it is important to deal with the definition, to require statistical records, and then to provide real carrots and sticks 

to encourage law enforcement and to support them in doing the 

right thing. 

This bill is not about blaming law enforcement. It is not designed 

to prevent law enforcement from doing its job. In fact, it tries to 

help make that happen. Law enforcement is most effective when 

there is confidence in society about its fair and balanced treatment 

of everyone in front of the law. That is what this bill is about. I 

am proud to be a supporter. I want to do everything we can to 

make sure that we bring about prompt passage of the End Racial 

Profiling Act. 

16

Chairman FEINGOLD. Senator Corzine, thank you for your tremendous devotion to this issue. 

Our next witness needs no introduction. Senator Hillary Clinton, 

from the State of New York, has impressed everyone, of course, 

with her passion and hard work both before coming to the Senate 

and in the Senate. But I can tell you on this one it is very, very 

real. She has worked with us everyday on this issue and she has 

made a valuable contribution to the legislation. I am so glad we 

have her so deeply involved in this bill. 

Senator Clinton, I apologize for how long it has taken. You may 

proceed. 

STATEMENT OF HON. HILLARY RODHAM CLINTON, A U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Senator CLINTON. Thank you, Mr. Chairman. I appreciate very 

much the opportunity to testify here with not only my distinguished colleagues and other elected officials, but also members of 

the law enforcement community and other experts who have 

worked diligently to try to identify a problem, define a problem, 

and then to come up with some ways of addressing that problem. 

I particularly want to thank those members of the law enforcement community who have worked with us over the past months 

to help shape this bill. A number of them will be addressing you. 

I particularly appreciate Senator Durbin’s identifying Ray Kelly, 

who did a superb job as the Commissioner of the U.S. Customs 

Service, and before that the Commissioner of the New York City 

Police Department. Under his leadership, as he will tell you specifically, the Customs Service made unprecedented strides both in preventing racial profiling and in seizing contraband. That is the kind 

of strategy that we are hoping to really highlight and further because of this bill. 

I am a very strong supporter, as I think every one of us both on 

the Committee and those of us testifying, of law enforcement. 

Where would be without those men and women who are on the 

front lines? The people I speak with really want the kind of community support that makes for good law enforcement. 

Time and time again, officers have told me how they really try 

to do the best job they can, often under incredibly stressful and difficult circumstances, and they need the support of the communities 

they police. They need to be able to count on the respect of those 

whose streets they walk and whose homes they protect. 

We believe, those of us who have worked on this legislation, that 

we are taking a step toward improving law enforcement and supporting our men and women in uniform, while sending a clear signal that an unconstitutional practice that is deplored uniformly 

across our country has to cease, both because it is wrong and because it undermines law enforcement instead of promotes the safety of our communities. 

I want to thank, certainly, Chairman Feingold for his leadership 

on this important issue, and my friend and colleague, Senator 

Corzine, who came to the Senate with this issue on the forefront 

of his agenda. And I want to thank Congressman Conyers. I 

couldn’t believe it when you were introduced as the second-longestserving member of the House. You started at a very, very young 

17

age, John, I know. No one believes that. I mean, that is hard to 

accept. And thanks also to Congressman Shays for his leadership. 

As has been reported, we held the press conference announcing 

this legislation on the House side under Congressman Conyers’

leadership and had strong bipartisan support, including from Congressman Asa Hutchinson, who is about to, I assume, be confirmed 

as the head of DEA. I was very pleased to see Congressman Hutchinson there supporting this bill because when he assumes the responsibility for the agency that is attempting to keep drugs out of 

our country and off our streets, he has already committed to ending 

racial profiling in part because he understands it is not an efficient 

law enforcement tool for doing what we need to do to stop drug 

abuse. 

Now, we are here because we know that this is a problem, and 

I want to commend the President and the Attorney General for 

their public support and their private efforts to try to come to some 

bill that can have the kind of bipartisan, bicameral support that we 

have attempted to muster behind this bill. 

I am hopeful with the President’s strong support and his statement in the address to Congress that we will see a bill on his desk 

before the end of this year. I think it is entirely possible. The Attorney General has put it on the top of his agenda, and as Congressman Conyers has said, discussions have already begun to try to 

work that out. 

One point I just want to underline is the issue of effective criminal justice. We started some years ago, under the leadership of people like Ray Kelly, community policing and data collection to try to 

take our information that was available and combine it with the 

streets smarts that our law enforcement personnel brought and 

really focus in on where crime was occurring. 

We have had great results in decreasing crime. We hope that we 

are going to keep driving the crime rate down because by and large 

it does impact most drastically on those communities that are most 

vulnerable. What we want to do in this bill, if one reads the description of the findings and the policies that are proposed, is really 

to support law enforcement with grants, with training, with the 

kinds of attitudes that will enable the vast majority of law-abiding 

people to feel very comfortable that the highest professionalism is 

at work in their police departments. 

We know that in New York City there has been strong support 

for legislation passed unanimously by the New York City Council, 

supported both by Mayor Giuliani and Police Commissioner Kerik, 

to begin publicly releasing data concerning the operations of the 

40,000-member New York City police force, the largest police force 

in the world. We know that collecting this data and making it public will enable our police departments to do an even better job. 

So there is much to be gained from the kind of positive approach 

that this legislation takes, which really is intended to be both a 

prohibition of racial profiling and a real statement of support for 

positive, effective law enforcement. 

I thank the Committee for this hearing and for the attention and 

concern that you are going to give to this issue, and look forward 

to working with not only you, but the administration in coming up 

18

with a bill that can be passed and signed by the President this 

year. 

Chairman FEINGOLD. Senator Clinton, you speak eloquently for 

all of us especially when you emphasize that all of us who support 

this bill are interested in maintaining and improving the excellent 

relationships we have with law enforcement in our States. That is 

what the bill is intended to do and if you look at the bill closely, 

that is exactly what it does. We want to work closely with all law 

enforcement to make sure that is the end result as well. 

Thank you, Senator Clinton. 

[The prepared statement of Senator Clinton follows:]

STATEMENT OF HON. HILLARY RODHAM CLINTON, A U.S. SENATOR FROM THE STATE

OF NEW YORK

Chairman Feingold and members of the subcommittee, thank you for giving me 

the opportunity to testify today here with my distinguished colleagues, other elected 

officials, members of the of the law enforcement community, and other experts who 

understand the tremendous harm that racial profiling causes and why we must 

work together to bring this conduct to an end. 

I also want to express my gratitude to my esteemed colleagues, Chairman Feingold for your leadership and Senator Corzine for his tremendous efforts in helping 

craft the End Racial Profiling Act of 2001. I believe this bill is thoughtful, balanced 

and is designed to bring people together, not to divide. 

In addition to my colleagues here in the Senate, I also want to acknowledge the 

efforts of Representative Conyers, the Ranking Member of the House Judiciary 

Committee, and a leader on this issue. Representative Conyers has worked to obtain 

the support of both Democrats and Republicans alike, including Republican Representatives Asa Hutchinson, Chris Shays, Tim Johnson, Constance Morella, and 

Jim Greenwood. I thank them all of them for their support and hope we will be able 

to build upon this strong bipartisan support in the Senate. 

Finally, I want to say Mr. Chairman that I am so very proud that testifying before 

the Committee today is Ray Kelly, former Commissioner of the New York City Police Department and more recently, the former Commissioner of the U.S. Customs 

Service, a capacity in which he served from August 1998 through January 2001. 

Under his leadership, the Customs Service made unprecedented strides in preventing racial profiling and improving its relations with the community it serves.

* * *

We are all here today, Democrats and Republicans alike, law enforcement and 

those of us who are protected every day by law enforcement, because racial profiling 

is simply wrong. It is unjust. It relegates honest, law-abiding citizens to second-class 

status when they suffer the embarrassment—the humiliation—the indignity—of 

being stopped or searched—and in some cases even physically harmed—simply because of their race, ethnicity or national origin. 

In addition to being unjust, however, racial profiling is also an ineffective law enforcement tool. The experts at John Jay College of Criminal Justice and elsewhere 

will tell you that the evidence is unquestionably clear, for example, that the vast 

majority of Blacks and Hispanics who are stopped or searched have committed no 

crime. Indeed, rather than serving as an effective law enforcement tool, racial 

profiling achieves one thing and one thing only—increasing the level of mistrust between law enforcement and the communities it is charged with the heavy burden 

to protect. 

That result serves no one. 

It fails to serve law enforcement because a critical component of truly effective 

law enforcement is strong community-police relations, partnerships in which law enforcement and our communities are working together to reduce crime and to make 

our communities as safe as they can be. 

Racial profiling fails to serve prosecutors, because law-abiding people who lose 

their faith in the promise of equal protection also sit on juries and are called upon 

to assess the credibility of police officers, who often play a key role in getting convictions for criminals. 

Most important, however, racial profiling fails to serve our community and instead strikes at the very foundation of our democracy. 

That is why it must end and end now. 

What does this bill do and what doesn’t it do? 

19

It is my hope, Mr. Chairman, that as our colleagues consider this legislation, they 

understand that this bill is not about blaming law enforcement or saying that law 

enforcement is bad or doesn’t do a good job. We know that this is simply not true. 

Those who uphold our nation’s laws on the streets where we live are men and 

women of courage. They go to work each day without the same degree of certainty 

that most of us have that they will return home safely, because they never know 

when the next traffic stop, the next domestic dispute, the next arrest will explode 

in their face. There is a memorial here in Washington with the names of more than 

14,000 American heroes, police officers, who gave their lives to make ours a safer 

country. 

What this bill does do is make very clear that racial profiling is wrong and that 

law enforcement agencies that haven’t done so already should adopt policies and 

procedures to eliminate and prevent racial profiling. 

Some might ask, how can adopting policies and procedures help stop racial 

profiling? Well, the experts at John Jay College will tell you that in the 1960’s and 

early 1970’s, most police departments in this country left it up to the individual officer to decide when to shoot to kill. During that time, the racial disparity among persons shot and killed by police was as high as eight African-Americans for every 

white person, and very much higher among victims who were neither armed nor in 

the process of assaulting a police officer. 

During the 1970’s and early 1980’s, police departments enforced strict standards, 

decreeing that deadly force could be exercised only in defense of the life of the officer 

or another person. In the large police departments in this country, these changes 

were accompanied by reductions of as much as 51% in the number of civilians killed 

by police. It also resulted in the significant reduction in the number of officers killed 

in the line of duty. This is just one example of how good policies and procedures 

can actually save lives without reducing the effectiveness of law enforcement. 

Recognizing the importance of policies and procedures to eliminate and prevent 

racial profiling, this bill provides incentives for law enforcement by giving grants to 

state and local law enforcement agencies to use in ways they believe will be most 

effective for their communities—whether to purchase equipment and other resources 

to assist in data collection or to provide training to officers to improve community 

relations and build trust. 

Chief Bruce Chamberlin, a distinguished member of the law enforcement community and the Chief of the Cheektowaga, New York Police Department, has spoken 

to me and a number of my colleagues about the importance of training and building 

relationships between law enforcement and communities. His actions, however, have 

spoken even louder than his words. He has taken the lead in Western New York 

in forming the Law Enforcement and Diversity Team or ‘‘LEAD’’ program, which exists to enhance communication and understanding between suburban law enforcement agencies and the diverse citizenry of Western New York. The LEAD team, 

sponsored by the National Conference for Community and Justice and the Erie 

County Chiefs of Police, developed one of the nation’s leading programs—‘‘Building 

Bridges’’—to start a dialogue between police officers and people of diverse cultural 

and racial backgrounds. 

The U.S. Department of Transportation has used excerpts from the LEAD Team’s 

‘‘What to do When Stopped by Police’’ brochure for the department’s national publication. The program has been adopted by the Buffalo and Cheektowaga school systems in the curriculum for high schools students. And it helps develop good relations between police and the community by eliminating some level of fear, distrust, 

and skepticism. 

Other New Yorkers have also worked to improve the relationship between communities and law enforcement. New York’s Attorney General, Elliot Spitzer, has instituted training programs in an effort to try and prevent racial profiling. In fact, just 

this past February through April, the Attorney General’s office conducted in-service 

training of all members of the New Rochelle, New York Police Department at the 

request of that department. 

Just last week, New York City Mayor Rudy Guiliani and Police Commissioner 

Bernard Kerik announced their support for legislation passed unanimously by the 

New York City Council that would require the public release of data concerning the 

operations of the 40,000 member New York City police force, the largest police force 

in the world. We know that collecting and publicly releasing data will assist the 

New York City Police Department in doing all that it can to prevent racial profiling 

and build better community relations. 

Academia can also play a role in promoting trust between law enforcement and 

the community. For example, the John Jay College of Criminal Justice has begun 

to conduct a six-week free course for members of the New York City Police Department on the racial and cultural diversity of New York City. More than 600 police 

20

officers from across New York City have enrolled in a course entitled: ‘‘Police Supervision in a Multiracial and Multicultural City.’’

With this bill, efforts like those currently lead by Chief Chamberlain, Attorney 

General Spitzer, John Jay College, and the City of New York will be expanded 

throughout the country. 

Mr. Chairman, more than a year ago when I spoke about these issues at the Riverside Church in New York City, I said ‘‘we must all be on the same side.’’ I am 

so proud that today—we are all here together—on the same side, Republicans and 

Democrats alike, citizens, officers of the law—to say that racial profiling is wrong 

and must end. 

We are here to say that in fighting racial profiling, we can at the same time forge 

even better relations between police and the neighborhoods they patrol, as we wage 

a common effort to reduce crime and make our communities safe.

Chairman FEINGOLD. If anybody needs to leave at this point, we 

will understand. 

Perhaps one of the most foolish things I have done in a long time 

is make Representative Shays go last. He is brilliantly gathering 

signatures in the House on an issue I care about, and the notion 

that I made him sit here for this amount of time while he is moving the campaign finance bill along makes me wonder. 

Representative SHAYS. Is that the Feingold-McCain Act? 

Chairman FEINGOLD. It is McCain-Feingold, Shays-Meehan. 

Representative Shays, we have worked closely together on that 

issue for many years. We are good friends, and I am very pleased 

that we have a chance to work together on a bipartisan basis on 

this issue. Representative Shays is one of eight Republicans who 

have cosponsored the House version of the End Racial Profiling 

Act. 

I thank you for your patience and for joining us today, Representative Shays. 

STATEMENT OF HON. CHRISTOPHER SHAYS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CONNECTICUT 

Representative SHAYS. No patience required, Mr. Chairman. 

Thank you, Chairman Feingold and Senator Thurmond, for convening this hearing on the End Racial Profiling Act. I am grateful 

to join with Senators Hillary Clinton and Jon Corzine, and Representative John Conyers, Dean of the House, minus one, in this 

bipartisan and bicameral initiative which addresses a critical issue 

in need of greater public debate and action. This hearing will surely help raise the public profile of this issue, but it needs to result 

in concrete action. 

Decades ago, with the passage of sweeping civil rights legislation, 

this Nation attempted to amplify and extend our constitutional 

commitment to equal protection and equal treatment under the 

law. One remaining bastian of racial bias cynically turns the law 

and law enforcement against the very citizens it is the solemn duty 

of both to protect. The practice of using race as a prime facie criterion for questioning or arrest violates this commitment and flies 

in the face of progress we have made toward racial equality. 

With my colleague, Mr. Conyers, of Michigan, I am a cosponsor 

of H.R. 2074, the companion bill to S. 989, to require law enforcement agencies adopt policies and procedures to eliminate racial 

profiling. The bill also holds States and localities to the same high 

standard by making sure Federal funds are not used to continue 

the practice. In taking these steps, the legislation reaffirms a comVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
21

mitment to judging individuals by their actions, not by their skin 

color. 

This bill will protect citizens from the indignity and stigma of 

profiling. It will also help law enforcement officers perform their 

sworn duty of impartiality. On July 19, the Government Reform 

Committee held a hearing on the benefits of audio-visual technology in addressing racial profiling. Video and audio systems can 

serve as an impartial third party, protecting citizens against arbitrary police actions, while reducing the risk of false or spurious racial profiling charges against law enforcement personnel. These 

technologies, when used effectively, should increase public confidence that arrests are being made based on probable cause, not 

racial stereotypes. 

I don’t walk in an African-American, Latino, or other minority’s 

shoes, but I do hear their cries for help, and so have many other 

Americans. A large majority of Americans believe racial profiling is 

widespread, and they want their fellow American brothers and sisters to be protected by the law, not to be victims of the law. These 

concerns are echoed in the House and Senate with the introduction 

of this bipartisan bill. I am truly encouraged by today’s hearing, 

and I pray this important legislation will be enacted into law. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Shays follows:]

STATEMENT OF HON. CHRISTOPHER SHAYS, A U.S. REPRESENTATIVE IN CONGRESS

FROM THE STATE OF CONNECTICUT

Thank you Chairman Feingold and Senator Thurmond for convening this hearing 

on The End Racial Profiling Act. This bipartisan initiative addresses a critical issue 

in need of greater public debate and this hearing will surely help raise the public 

profile of this issue. 

Decades ago, with the passage of sweeping civil rights legislation, the nation attempted to amplify and extend our constitutional commitment to equal protection, 

and equal treatment, under the law. One remaining bastion of racial bias cynically 

turns the law, and law enforcement, against the very citizens it is the solemn duty 

of both to protect. The practice of using race as a prima facie criterion for questioning or arrest violates this commitment, and flies in the face of progress we have 

made toward racial equality. 

With my colleague Mr. Conyers of Michigan, I am a sponsor of H.R. 2074, the 

companion bill to S. 989, to require law enforcement agencies to adopt policies and 

procedures to eliminate racial profiling. The bill also holds states and localities to 

the same high standard by making sure federal funds are not used to continue the 

practice. In taking these steps, the legislation reaffirms a commitment to judging 

individuals by their actions; not by their skin. This bill would protect citizens from 

the indignity and stigma of profiling. It would also help law enforcement officers 

perform their sworn duties of impartiality. 

On July 19 the Government Reform Committee held a hearing on ‘‘The Benefits 

of Audio-Visual Technology in Addressing Racial Profiling.’’ Video and audio systems can serve as an impartial third party, protecting citizens against arbitrary police actions while reducing the risk of false or spurious racial profiling charges 

against law enforcement personnel. These technologies, when used effectively, 

should increase public confidence that arrests are being made based on probable 

cause, not racial stereotypes. 

According to a 1999 Gallup Poll a majority of Americans believe racial profiling 

is widespread. These concerns are echoed in the House and Senate with the introduction of this bipartisan bill. I am encouraged by today’s hearing that this important legislation will be enacted. 

Again, thank you for focusing the subcommittee’s attention on this issue.

Chairman FEINGOLD. Thanks so much, Chris. Now, go and get 

the other signatures, please, in the House. 

Thanks to all the members of the panel. 

22

We are going to have a vote at 11, but before that we will first 

turn to Senator Edwards for his remarks, briefly to Senator Thurmond, and then there will be just a very brief recess. I will run 

right over and vote, come back, and we will start with the second 

panel. 

Senator Edwards? 

STATEMENT OF HON. JOHN EDWARDS, A U.S. SENATOR FROM 

THE STATE OF NORTH CAROLINA 

Senator EDWARDS. Thank you, Mr. Chairman. Mr. Chairman, 

thank you for your leadership. We have all depended on your 

knowledge and expertise on this issue and we will continue to do 

so. 

Before he leaves, I want to thank our witness, Congressman Conyers, for your leadership on this and on similar issues for such a 

long time. You are one of the great leaders in this country and we 

thank you for what you have done for us. 

Senators Clinton and Corzine—Senator Clinton has left, but we 

thank you very much for your work on this. 

Congressman Shays, not only on this issue, but also on campaign 

finance, we are very appreciative of all the work that you have 

done. 

Others have said it, but all of us recognize that the brave men 

and women who serve as law enforcement officers play a critical 

role in this country protecting and preserving the safety of our 

communities. We all should never understate our appreciation for 

those efforts. 

Unfortunately—and that is what this hearing is about—we have 

also heard the stories about people being stopped in this country 

solely because of their ethnicity and because of their race. These 

stories are deplorable. They send a message of bigotry and intolerance, and we have to send a clear message that Congress will not 

tolerate this kind of behavior. That is what this hearing is about 

and that is what this legislation is about. 

Let me just take a minute, if I can, and talk about what has been 

going on in my State of North Carolina. About 2 years ago, we became the first State in the country to pass law requiring that data 

be collected in order to determine if racial profiling is, in fact, taking place. An important aspect of that law is that it only applies 

to State law enforcement, so only the North Carolina State Highway Patrol is required to collect this data on traffic stops. However, 

I should mention that the legislation that is pending in the North 

Carolina General Assembly now expands the data collection to all 

law enforcement in the State of North Carolina. 

So far, the information we have gotten has told us the following 

things. First, the good news is that the number African-Americans 

who were stopped by law enforcement in North Carolina is not significantly greater than those that are not African-American. 

However, when it comes to searches, African-American males are 

disproportionately singled out both as passengers and as drivers. 

Nearly half of all drivers who were searched in my State of North 

Carolina were African-Americans. Equally disturbing is the fact 

that with regard to stops and searches, Latino males were disproportionately singled out. 

23

As surprising as these data are, this data is essential to helping 

us understand the extent to which profiling is occurring and will 

help provide us with the facts we need to determine the remedies 

that are necessary. 

For example, under the strong leadership of Colonel Richard 

Holden, head of the North Carolina State Highway Patrol, all 

North Carolina Highway Patrol officers are now required to undergo diversity and integrity training. And the Colonel has initiated 

a program in every county in the State where community leaders, 

law enforcement and the general public get together to discuss 

issues regarding police-community relations and perceived problems. Suggestions on how to fix these problems are also discussed. 

I commend the Colonel for this work and all the other actions that 

he has taken. 

Unfortunately, there are thousands of law enforcement agencies 

at all levels of government that have not been as proactive on the 

issue of racial profiling. We must provide an incentive for them to 

do so. In terms of actual data collection, in some instances local law 

enforcement agencies such as those in Hendersonville, High Point, 

and Davidson County, North Carolina, have experimented with 

data collection, even though the law doesn’t require them to do it. 

I applaud them for doing that, but we have to do more. 

Many law enforcement agencies around the country don’t collect 

this data and don’t intend to do so. Most of those who do collect 

the data are not subject to any kind of oversight. Senator 

Feingold’s bill, which I am a cosponsor of and strongly support, 

provides a solution to these problems and will go a long way toward ending the practice of racial profiling. 

What will happen if the Federal Government does not act to stop 

racial profiling? What kind of message are we sending to our minority communities if we fail to act? 

Mr. Chairman, I thank you and I thank the witnesses very much 

for their work in this area. 

Chairman FEINGOLD. Senator Edwards, we are just delighted to 

have you on the Committee, and I am especially delighted to have 

you as a cosponsor and a partner on this effort. 

We will now turn briefly to Senator Thurmond, who is not able 

to return for the second panel and who I believe would like to make 

a brief remark. 

Senator Thurmond? 

Senator THURMOND. Thank you, Mr. Chairman. I would like to 

place into the record letters from the National Troopers Coalition, 

the National Association of Police Organizations, and the International Association of Chiefs of Police. 

I would also like to place into the record the remarks of Police 

Chief Reuben Greenberg made before the Cato Institute earlier this 

year. Chief Greenberg is one of our witnesses today. He does an 

outstanding job as the police chief for Charleston, South Carolina, 

and I appreciate him taking the time to be here today. 

Thank you very much. 

Chairman FEINGOLD. Thank you, and, without objection, those 

items will be placed in the record. 

24

At this point, the Subcommittee will briefly recess, and I will assure the witnesses I will be right back and we will start with the 

second panel. 

[The Subcommittee stood in recess from 11:06 a.m. to 11:24 a.m.] 

Chairman FEINGOLD. The Subcommittee will come back to order. 

I thank everyone for your patience in the delay. 

Now, I would like to bring up our second panel of distinguished 

guests. We will start on my left with Mayor Dennis Archer, of Detroit. Mayor Archer currently serves as the president of the National League of Cities, on whose behalf he is testifying today, and 

is a member of the American Bar Association Board of Governors. 

He was instrumental in the American Bar Association passing a 

resolution in 1999 against racial profiling. 

Mayor Archer, let me ask you and all of our witnesses, if possible, to limit your remarks to 5 minutes. We have a large panel 

here and I want to make sure that members of the Committee have 

at least some chance to ask questions. Your entire written statements will appear in the record of this hearing. 

Mayor Archer, I would like you to please proceed. 

STATEMENT OF HON. DENNIS W. ARCHER, MAYOR, CITY OF 

DETROIT, MICHIGAN, AND PRESIDENT, THE NATIONAL 

LEAGUE OF CITIES, DETROIT, MICHIGAN; ACCOMPANIED BY 

OLDEN HENSON, CITY COUNCIL MEMBER, HAYWARD, CALIFORNIA 

Mayor ARCHER. Mr. Chairman and the absent members of the 

Subcommittee, the National League of Cities is pleased to have this 

opportunity to share its views on the End Racial Profiling Act of 

2001. 

I am Dennis Archer, Mayor of Detroit, Michigan, and President 

of the National League of Cities. With me today is Council Member 

Olden Henson, of Hayward, California, who is past chairman of the 

National League of Cities Public Safety and Crime Prevention 

Committee. Council Member Henson has not only taken a strong 

stand against racial profiling in his community, but he has also 

helped develop our organization’s national policy against racial 

profiling as well. 

The National League of Cities is the Nation’s oldest national association representing municipal interests in Washington. The 

NLC’s membership includes more than 18,000 cities, towns and villages across the country, with over 135,000 mayors and local elected officials. 

As an aside, I will be submitting written testimony for the record 

on behalf of the American Bar Association and our position on this 

issue within 1 week. 

On behalf of the National League of Cities, I would like to express my gratitude to you, Mr. Chairman, for introducing S. 989, 

the End Racial Profiling Act of 2001. Your leadership on this issue, 

along with that of Representative John Conyers, of Michigan, clearly shows your commitment to addressing this widespread practice 

of racial discrimination by Federal, State and local law enforcement 

agencies. 

The National League of Cities adopted a resolution against racially based profiling in December 2000 which strongly supports 

25

enactment of Federal legislation to provide financial assistance to 

State and local law enforcement agencies. Such assistance should 

help pay for training programs, equipment, data collection and research as measures to prevent further incidents and allegations of 

biased profiling. 

Moreover, NLC’s national municipal policy calls for a constant 

commitment from all levels of government to ensure that justice is 

dispensed equally and not based on race, gender, education or economic status. In this regard, Mr. Chairman, I convey the National 

League of Cities’ strong support for S. 989. 

In March, the National League of Cities Board of Directors reinforced our commitment to end racial profiling by adopting a legislative action agenda which urges Congress and the administration to 

enact legislation prohibiting racial profiling. Additionally, NLC organized a broad coalition of 29 organizations on investing in communities, which includes youth advocates, organized labor, homebuilders and other public interest groups that have endorsed the 

same agenda to promote racial justice. 

I am sure that many of us here today have heard complaints 

from citizens who have been stopped, searched, and even harassed 

as a result of incidents where law enforcement officers have detained them simply because of their race or ethnicity rather than 

for appropriate law enforcement reasons. 

As an elected official, I have fielded many concerns from motorists who were victims of racial profiling because they were allegedly in the wrong neighborhood or driving the wrong car. Furthermore, there is no doubt that such discriminatory practices undermine the sacred trust and respect between law enforcement and 

the community, and erode the basic foundations of effective community policing. 

While it is the duty of local governments and law enforcement 

to serve and protect all citizens, we must ensure that this responsibility assiduously avoids racism and bigotry. Although many cities 

have already implemented measures to eradicate racial profiling 

within their police departments, more efforts are needed to improve 

the credibility of law enforcement in all communities. 

This concern has been reiterated by the International Association 

of Chiefs of Police, which has stated that the highly publicized incidents of use of force, racial profiling, corruption and instances of 

unethical behavior of police officers and executives have laid the 

groundwork for many of our citizens to believe that the problems 

are widespread and deeply rooted. 

The IACP also stated that the concerns of our citizens encompass 

not only law enforcement, but all participants in the criminal justice system, to the courts, to prosecutors, and to corrections and 

probation officials. For all of these elements to perform in an effective manner that ensures justice and leads to orderly and peaceful 

communities, there must exist a trusting and confident relationship 

with all of our citizens in every part of our country. 

As both proactive and corrective measures to ban racial profiling, 

cities have held community forums and field hearings on the problem, formed task forces with local stakeholders, implemented sensitivity training for police, revised policies on traffic stops and enforcement procedures, developed their own data collection systems 

26

on profiling, and helped the United States Department of Justice 

gather data and best practices on addressing the problem. 

To cite one example, Council Member Henson led the city of Hayward’s efforts to implement a data collection system on traffic stops 

last year, along with a policy that strictly prohibits racial profiling 

and outlines criteria that must be met prior to officers stopping 

and searching a vehicle. 

To address this problem nationally, however, the National 

League of Cities supports the provisions included in your legislation, along with sufficient funding to support local law enforcement 

efforts for data collection, training and other remedial measures 

needed to redress discriminatory law enforcement practices. 

Through existing grants such as the Local Law Enforcement 

Block Grant and Community-Oriented Policing Services Program, 

this new legislation will help augment the efforts of local law enforcement agencies to collect the proper data on traffic stops conducted, continue effective training for police officers, and engage in 

interagency partnerships to address racial profiling. 

Mr. Chairman, while today’s hearing focuses on remedial actions 

for law enforcement, I want to add my voice to the fact that a vast 

majority of law enforcement officers conduct themselves in a professional manner and without bias. Such exemplary work has helped 

reduce the national crime rate to an all-time low. 

To continue this success, however, all levels of government must 

work together to ensure that the basic constitutional rights of 

Americans are not compromised because of a perception by some 

that race is an appropriate factor in the decision to stop or search 

individuals. 

Once again, the National League of Cities supports S. 989 as another opportunity for the Federal Government to continue its longstanding partnership with State and local governments for public 

safety. Through the work of legislators like yourself, Mr. Chairman, 

Senators Hatch, Biden, and former Representative Bill McCollum 

of Florida, local governments have enacted numerous successful 

crime prevention programs through block grants and community 

policing grants. We will continue to utilize such funding to help improve community crime prevention, while taking a strong stand 

against racism. 

Finally, Mr. Chairman, I greatly appreciate your leadership on 

this issue and look forward to working with you as this crucial 

piece of legislation moves forward toward final passage. 

I would be happy to answer questions that you or the Subcommittee may have. Thank you. 

[The prepared statements of Mayor Archer follow:]

STATEMENT OF HON. DENNIS W. ARCHER, MAYOR OF DETROIT, MICHIGAN ON BEHALF

OF THE NATIONAL LEAGUE OF CITIES, WASHINGTON, D.C. 

Chairman Feingold and Members of the Subcommittee, the National League of 

Cities (NLC) is pleased to have this opportunity to share its views on the ‘‘End Racial Profiling Act of 2001.’’ I am Dennis Archer, Mayor of Detroit, Michigan, and 

President of the National League of Cities. I would also like to acknowledge Council 

member Olden Henson of Hayward, California, who is a past Chairman of NLC’s 

Public Safety and Crime Prevention Committee. 

The National League of Cities is the nation’s oldest national association representing municipal interests in Washington. NLC’s membership includes more 

than 18,000 cities, towns, and villages across the country, with over 135,000 mayors 

27

and local elected officials, from our nation’s largest cities—New York and Los Angeles—to its smallest member, Black Hawk, Colorado, with a population of 150. I ask 

that my written testimony be submitted for the record along with this statement 

from the American Bar Association. 

On behalf of NLC, I would like to express my gratitude to you, Mr. Chairman, 

for introducing S. 989, the ‘‘End Racial Profiling Act of 2001.’’ Your leadership on 

this issue, along with that of Representative John Conyers of Michigan, clearly 

shows your commitment to addressing this widespread practice of racial discrimination by federal, state, and local law enforcement agencies. 

The National League of Cities adopted a resolution against racially-based profiling 

in December 2000, which strongly supports enactment of federal legislation to provide financial assistance to state and local law enforcement agencies. Such assistance should help pay for training programs, equipment, data collection and research 

as measures to prevent further incidents and allegations of biased profiling. Moreover, NLC’s National Municipal Policy calls for a constant commitment from all levels of government to ensure that justice is dispensed equally, and not based on race, 

gender, education, or economic status. In this regard, Mr. Chairman, I convey NLC’s strong support for S. 989. 

In March, NLC’s Board of Directors reinforced our commitment to end racial 

profiling by adopting a legislative action agenda, which urges Congress and the Administration to enact legislation prohibiting racial profiling. The call for such legislation is a strong acknowledgement that all levels of government must work diligently to end discriminatory policies and to ensure true equal opportunity. Additionally, NLC organized a broad coalition of 28 organizations on ‘‘Investing In Communities,’’ which includes youth advocates, organized labor, homebuilders, and other 

public interest groups, that have endorsed the same agenda to promote racial justice. 

I am sure that many of us here today have heard complaints from citizens who 

have been stopped, searched, and even harassed as a result of incidents, where law 

enforcement officers have detained them simply because of their race or ethnicity, 

rather than for appropriate law enforcement reasons. As an elected official, I have 

fielded many concerns from motorists who were victims of racial profiling because 

they were allegedly ‘‘in the wrong neighborhood,’’ or ‘‘driving the wrong car.’’ There 

are thousands of personal stories across the nation that have been widely publicized. 

Furthermore, there is no doubt that such discriminatory practices undermine the 

sacred trust and respect between law enforcement and the community and erode the 

basic foundations of effective community policing. While it is the duty of local governments and law enforcement to serve and protect all citizens, we must ensure 

that this responsibility assiduously avoids racism and bigotry. 

Although many cities have already implemented measures to eradicate racial 

profiling within their police departments, more efforts are needed to improve the 

credibility of law enforcement in all communities. This concern has been reiterated 

by the International Association of Chiefs of Police (IACP), which stated that the 

‘‘highly publicized incidents of use of force, racial profiling, corruption, and instances 

of unethical behavior of police officers and executives have laid the groundwork for 

many of our citizens to believe that the problems are widespread and deeply rooted. 

The concerns of our citizens encompass not only law enforcement but all the participants in the criminal justice system—to the courts, to prosecutors, corrections, and 

probation officials. For all of these elements to perform in an effective manner that 

ensures justice and leads to orderly and peaceful communities, there must exist a 

trusting and confident relationship with all of our citizens in every part of the country.’’

As both proactive and corrective measures to ban racial profiling, cities have held 

community forums and field hearings on the problem; formed task forces with local 

stakeholders; implemented sensitivity training for police; revised policies on traffic 

stops and enforcement procedures; developed their own data collection systems on 

profiling; and helped the U.S. Department of Justice gather data and best practices 

on addressing the problem. To cite one example, the City of Hayward, California, 

instituted a data collection system on traffic stops last year along with a policy that 

strictly prohibits racial profiling and outlines criteria that must be met prior to officers stopping and searching a vehicle. 

To address this problem nationally, however, NLC supports the provisions included in your legislation along with sufficient funding to support local law enforcement efforts for data collection, training, and other remedial measures needed to redress discriminatory law enforcement practices. Through existing grants, such as 

the Local Law Enforcement Block Grant and Community Oriented Policing Services 

Program (COPS), this new legislation would help augment efforts of local law enforcement agencies to collect the proper data on traffic stops conducted, continue efVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
28

fective training for police officers, and engage in interagency partnerships to address 

racial profiling. 

NLC is also interested in the results of Attorney General John Ashcroft’s review 

of racial profiling within federal law enforcement agencies. Similarly, we are encouraged by Congressman Asa Hutchinson’s commitment to ban racial profiling, as he 

has stated as nominee for Director of the U.S. Drug Enforcement Administration. 

Mr. Chairman, while today’s hearing focuses on remedial actions for law enforcement, I would be remiss if I did not acknowledge the fact that a majority of law 

enforcement officers conduct themselves in a professional manner, without bias. 

Such exemplary work has helped reduce the national crime rate to an all-time low. 

To continue this success, however, all levels of government must work together to 

ensure that the basic constitutional rights of Americans are not compromised because of perceptions by some that race is an appropriate factor in the decision to 

stop or search individuals. 

Once again, NLC supports S. 989 as another opportunity for the federal government to continue its longstanding partnership with states and local governments for 

public safety. Through the work of legislators like yourself, Mr. Chairman, Senators 

Hatch and Biden, and former Representative Bill McCollum of Florida, local governments have enacted numerous successful crime prevention programs through block 

grants and community policing grants. We will continue to utilize such funding to 

help improve community crime prevention while taking a strong stand against racism. 

Mr. Chairman and Members of the Subcommittee, I greatly appreciate your leadership on this issue, and look forward to working with you as this crucial piece of 

legislation moves forward toward final passage. I would be happy to answer any 

questions that the Subcommittee may have. 

Thank you.

ADDITIONAL STATEMENT OF H

fON. DENNIS W. ARCHER, MAYOR OF DETROIT, 

MICHIGAN ON BEHALF OF THE AMERICAN BAR ASSOCIATION, WASHINGTON, D.C. 

Mr. Chairman and Members of the Subcommittee, I am Dennis Archer, Mayor of 

the City of the Detroit. I provide these remarks on behalf of the American Bar Association, on whose board of Governors I serve. 

The ABA, with over 400,000 members, is the largest voluntary professional association in the world. The ABA has as its core mission promoting the improvement 

of the system of justice and ensuring equality of access to justice. In February 2001 

the Board of Governors designated 12 of our adopted policy positions as Legislative 

and Governmental Priorities for the year. Legal Remedies to Eliminate Discrimination is one of those designated priorities. Data collection on the conduct of traffic 

stops offers an important legal remedy to address the discriminatory practice of racial profiling by law enforcement. 

In Whren v. United States, 116 S. Ct. 1769 (1996), the Supreme Court upheld a 

practice that has long been employed by law enforcement officials in conducting 

traffic stops. The Court held that so long as any violation of a traffic code occurs, 

no matter how technical or insignificant, the police may stop an automobile and 

question its driver. This is so even if the minor violation upon which the stop is 

based is purely a pretext for the stop and the opportunity to conduct further investigation. Moreover, the officer may question the motorist regarding unrelated, and 

even imagined, criminal activity, and may seek consent to search the vehicle and 

the occupants. 

The large degree of discretion the Whren decision conferred upon law enforcement 

officials was augmented by the recent decision in Atwater et al. v. City of Lago Vista 

et al., No. 99 1408 (Decided April 24, 2001), in which a rule allowing police officers 

to take individuals into custody for the most minor of offenses was advanced and 

upheld. In her dissent in Atwater, Justice Sandra Day O’Connor warned, ‘‘Indeed, 

as the recent debate over racial profiling demonstrates all too clearly, a relatively 

minor traffic infraction may often serve as an excuse for stopping and harassing an 

individual.’’

This line of cases challenges elected officials like myself who must provide guidance to their jurisdiction’s police departments on good community relations. I know 

many men and women in law enforcement and I know them well: as friends, as colleagues, as subordinates, and as partners in community service. I know of the challenges they face, by both my observations and their own accounts, and I believe that 

every power at their disposal is there for the benefit of the community they serve. 

29

However, I also know that it does not take many abuses of power to corrupt a force 

or to drive a wedge of distrust between the officers and those they have sworn to 

protect. Without the checks provided by the court system, ferreting out those who 

abuse the power with which they are entrusted proves difficult. 

Data collection provides a useful tool in this regard. Rather than depend upon citizens to bring attention to violations through the court system or through administrative proceedings, data collection in combination with a national study of the data 

collected and cross-jurisdictional comparisons would be an effective managerial tool 

to address racial disparities in traffic stops. 

On behalf of the ABA I applaud you, Mr. Chairman for your leadership in bringing this important measure to the Senate. I also applaud Ranking Minority Member 

of the House Judiciary Committee, the Honorable John Conyers for his leadership 

over many years in pursuing this legislative response to this pressing national problem. 

Thank you for the opportunity to submit the views of the ABA to the Subcommittee.

Chairman FEINGOLD. Thank you very, very much, Mayor Archer, 

for your testimony, for your leadership and for the support of the 

National League of Cities. I understand that you have to return to 

Chicago shortly for an important meeting of the ABA, so I would 

like to just ask you a question. I know that Mr. Henson is willing 

to sit in if you have to leave. 

If other Senators come, perhaps they will ask you a question, but 

my question is to ask you personally if you would like to tell us 

of any personal experience you have had with racial profiling that 

you can share with this Subcommittee. 

Mayor ARCHER. Mr. Chairman, the year that I was president of 

the State Bar of Michigan, I was returning from our State capital 

in Lansing. Driving back to Detroit, I found myself surrounded by 

five or six police cars. I was asked to get out of the car. I was put 

in the back seat of a police car while they went through the inside 

of my car and my briefcase. 

Upon discovering that I was president of the State Bar of Michigan, they came back with a very strong apology, indicating that I 

had somehow fit the profile of a drug-runner or somebody who 

might be driving drugs down the freeway. That was back during 

1984–85. 

More recently, a couple of years ago, my son, who is a lawyer but 

does not practice, was out with a date who is now his fiancee who 

happens to be an assistant prosecuting attorney for Oakland County, in Michigan. They were driving through a suburban community 

and they were pulled over to the side, guns drawn. 

They asked my son to get out of the car and back up with hands 

up, frisked him, did not bother to ask for any identification, and 

asked her to get out of the car. I believe she was ultimately handcuffed. They did not ask her for any identification or anything. 

They searched the car, and then once they got his driver’s license 

they looked at his name and asked, because his name is Dennis Archer, Jr., if he was related to Dennis Archer, the Mayor of Detroit. 

He said, yes, that is my dad. 

There was an incident that had occurred that involved another 

different-colored Jeep Cherokee. There had been a robbery in the 

area. There had been no report of any woman in the car. They 

never bothered to stop and ask any questions about who they were. 

It was widely reported in the paper. The mayor of the suburban 

community, whom I happened to know, called and shared his concern about it and remarked that his dad was a former police officer 

30

in the city of Detroit and he understood how I felt and how my son 

must have felt. 

As Congressman Conyers has indicated, I don’t know too many 

people of color who do not know somehow who has been stopped 

because either they have been in the wrong neighborhood, at the 

wrong place, as far as the officer might have been concerned, at the 

wrong time. 

As I said in my opening remarks, let me just say that overwhelmingly the vast majority of the police officers I have met and 

know do a fine job. But what this does when it occurs is it undermines, as it did with that youngster that was so graphically shown 

at the beginning of this hearing—you saw what it did with that 

youngster. That youngster had tears in his eyes. I mean, that was 

something that will have a profound effect on him for the rest of 

his life. 

That is the kind of thing that will occur unless it is stopped. 

That is the reason why your bill, Mr. Senator, is so important that 

it pass the Senate this year as quickly as possible. 

Chairman FEINGOLD. Thanks so much, Mayor Archer. I also 

want to reiterate that I again make it very clear that I do not think 

that most individual policemen engage in this kind of activity, nor 

do most departments. But the number of incidents like the ones 

you just shared here relayed by prominent Americans in the last 

year is frankly just startling to me. I appreciate your willingness 

to share those experiences. 

Thank you very much, Mayor Archer. 

Mayor ARCHER. Thank you, Senator. 

Chairman FEINGOLD. Our next witness will be Steve Young. Mr. 

Young is currently the Vice President of the Fraternal Order of Police, a position he has held since 1997. Before that, he served as 

the President of the Ohio Chapter of the FOP and was with the 

Marion City Police Department for 25 years. 

I thank you for being here and you may proceed.

STATEMENT OF STEVE YOUNG, NATIONAL VICE PRESIDENT, 

FRATERNAL ORDER OF POLICE, WASHINGTON, D.C. 

Mr. YOUNG. Thank you, Mr. Chairman, and good morning. I am 

representing the Fraternal Order of Police. I am currently the National Vice President. Our organization is the largest law enforcement labor organization, representing more than 299,000 rank-andfile law enforcement officers in every region of the country. I am 

here this morning to discuss our strong opposition to S. 989, the 

End Racial Profiling Act, introduced by Senators Feingold, Clinton 

and Corzine. 

I want to begin by saying very clearly that racism is wrong. It 

is wrong to think a person a criminal because of the color of that 

person’s skin. But it is equally wrong to think a person a racist because of the color of the uniform. We can and must restore the 

bonds of trust between law enforcement and minorities. To do so 

requires substantial effort to find real solutions. The solution this 

bill provides is to identify the problem as racist police officers. 

Mr. Chairman, I was struck by Senator Durbin’s remarks this 

morning because they demonstrate what effective police managers 

31

do if they learn of a potential problem with their policing practices. 

They change it and implement new strategies. 

In his example, Commissioner Kelly did not wait for Washington 

to act or for Congress to drop a bill or launch an investigation. The 

problem that Commissioner Kelly perceived was with the agency 

he commanded and he resolved. If police management today were 

as effective as Commissioner Kelly, I wouldn’t be here today, this 

hearing wouldn’t be necessary, and this legislation would never 

have been written. 

The so-called practice of racial profiling is being hyped by activists, the media and others with political agenda who presuppose 

that a man or a woman in a police officer’s uniform is inclined to 

be racially biased. This is just not so. 

There is a mistaken perception on the part of some, perhaps including the authors of this bill, that the ugliness of racism is part 

of the culture of law enforcement. I am here today not only to challenge this perception, but refute it entirely. 

To begin with, the legislation’s definition of racial profiling is far 

too broad. The bill prohibits the use of race to any degree in selecting individuals to be subject to even the most routine investigatory 

action. This means that absent an eyewitness or other description 

of a specific suspect’s race or ethnicity, law enforcement officers can 

never use race as a factor, even if it would help them to identify 

a suspect, prevent a crime or lead to an arrest. 

What does this mean to the officer on the beat? No minority will 

be stopped, searched or questioned, no matter how suspicious the 

activity, without a specific eyewitness account. Measures like this 

can only lead to situations like we now have in Cincinnati. Eightyfive people have been wounded or killed in 73 separate shooting incidents since the riots in April. Last year, during the same timeframe, there were 9 shootings and 11 victims. None of the shootings since April have received media attention, like the death of 

Timothy Thomas, or even that of Ricky Moore, who ambushed and 

attempted to kill Officer Thomas Haas just last week. Why? Do we 

as a Nation not care about black-on-black violence? The Over-theRhine community does, and that includes the police officers who 

live and work there. 

I also want to question this legislation’s proposal to use statistical data against law enforcement officers and agencies in legal action against them. This is a terrible precedent to set. This bill assumes that racial profiling has occurred solely on the basis of a statistical disparity. 

Section 102(c) of the bill provides that demonstrating that law 

enforcement activities disparately impact racial or ethnic minorities constitutes prima facie evidence of illegal activity. The effect 

of this presumption is not expressly spelled out in the legislation, 

but it is very clear to law enforcement. 

The resulting litigation burden on law enforcement agencies will 

be dramatic. After all, once a disparate impact is demonstrated, it 

will be up to the law enforcement agency to somehow prove itself 

innocent of engaging in the unlawful use of race in its procedures 

and practices. More significantly, each officer’s individual enforcement action will be faced with the same burden. 

32

No one ought to be stopped solely on the basis of their race. This 

practice is wrong and does not serve the law enforcement mission. 

But to contend that the successful practice of profiling, which does 

not exclusively consider race, be abandoned when it has proved to 

be a successful tool to prevent crime and catch criminals, is not the 

answer. If this practice is misused or misunderstood, then it must 

be corrected. Racism is never a legitimate law enforcement tool. 

Mandatory data collection is also not sound policy from a public 

safety perspective because it would require law enforcement officers to engage in the collection of sociological data. When you add 

to the list of things that police officers have to do, you are necessarily subtracting from the law enforcement mission. Police officers are supposed to prevent crime and catch the crooks, not collect 

data for Federal agencies. 

How can we achieve a color-blind society if policies at the Federal 

level require the detailed recording of race when it comes to something as common as a traffic stop? What next? Will the passengers’

race need to be recorded? Some traffic stops result in the arrest of 

the passengers. 

What about the officer’s race? Should that be recorded so that officers can be assigned to beats based on their ethnic background? 

And what if the officer is unable to determine the driver’s race? 

Will police officers now be required to ask for driver’s license, registration, and proof of ethnicity, please? 

Legislation like S. 989 emphasizes racial differences. It will, in 

fact, make police officers much more aware of race, when our objective should be to deemphasize the race of the suspect. Racial tensions increase, not decrease, if this bill’s measures are given the 

force of law. 

I do not know if, let alone how, we as a Nation can solve the 

problems of racism, but I do know what will and will not work in 

the profession of law enforcement. There is a mistaken perception 

that the ugliness of racism is part of the culture of law enforcement. It is incumbent on all of us to correct that perception. This 

will was written with this mistaken perception in mind and it reinforces it. 

This legislation is not good public safety policy and will not result in good policing. It will not help to rebuild the trust between 

law enforcement and the minority community. For these reasons, 

the Fraternal Order of Police strongly opposes the bill and I urge 

this Subcommittee to reject it. 

Mr. Chairman, I thank you for the opportunity to appear before 

the Subcommittee today. 

[The prepared statement of Mr. Young follows:]

STATEMENT OF STEVE YOUNG, NATIONAL VICE PRESIDENT, FRATERNAL ORDER OF

POLICE

Good afternoon, Mr. Chairman and distinguished members of the Senate Subcommittee on the Constitution, Federalism and Property Rights. My name is Steve 

Young, I am a twenty-five year veteran of the Marion, Ohio City Police Department. 

I am the National Vice President of the Fraternal Order of Police. The F.O.P. is the 

nation’s largest law enforcement labor organization, representing more than 297,000 

rank-and-file law enforcement officers in every region of the country. I am here this 

morning to discuss our strong opposition to S. 989, the ‘‘End Racial Profiling Act,’’

introduced by Senators Feingold, Clinton and Corzine. 

33

I want to begin by saying very clearly that racism is wrong. It is wrong to think 

a person a criminal because of the color of his or her skin. But it is equally wrong 

to think a person a racist because of the color of his or her uniform. This bill is 

a ‘‘solution’’ bill, but it unfortunately identifies the ‘‘problem’’ as racist police officers. The so-called practice of ‘‘racial profiling,’’ hyped by activists, the media and 

others with political agendas, is one of the greatest sources of stress between law 

enforcement and the minority community in our nation today. But the solution cannot, as this bill does, presuppose that a man or woman in a police officer’s uniform 

is inclined to be racially biased. This is just not so. 

The so-called practice of ‘‘racial profiling’’ is, in fact, only part of the larger issue. 

That larger issue is a mistaken perception on the part of some that the ugliness 

of racism is part of the culture of law enforcement. I am here today not only to challenge this perception, but refute it entirely. 

We can and must restore the bonds of trust between law enforcement and minorities; to do so requires substantial effort to find real solutions. It requires that we 

resist our inclination to engage in meaningless ‘‘feel good’’ measures that fail to address the substance of our problem. It requires that we resist using hyperbole and 

rhetorical excess to place blame. This legislation does both of these things and we 

strongly oppose it. Open and honest communication builds trust—snappy sound 

bites and bills with the premise that law enforcement officers are racist do not. 

I do not believe that S. 989, the ‘‘End Racial Profiling Act’’ will help to repair the 

bonds of trust and mutual respect between law enforcement and minority communities. Quite the opposite—I believe it will widen them because it is written with 

the presumption that racist tactics are common tools of our nation’s police departments. This is wrong and is a great disservice to the brave men and women who 

put themselves in harm’s way every day and night to keep our streets safe. 

Let me explain by addressing some of the bill’s specifics. 

First of all, we believe that the legislation unnecessarily defines and bans ‘‘racial 

profiling.’’ ‘‘Racial profiling’’ is not a legitimate police practice employed by any law 

enforcement agency in the United States. The United States Supreme Court has already made it very clear that ‘‘the Constitution prohibits selective enforcement of 

the law based on considerations such as race,’’ and that ‘‘the constitutional basis for 

objecting to intentionally discriminatory application of the laws is the Equal Protection Clause.’’ Whren v. United States, 517 U.S. 806, 813 (1996). Further, as one 

Court of Appeals has explained, ‘‘citizens are entitled to equal protection of the laws 

at all times. If law enforcement adopts a policy, employs a practice, or in a given 

situation, takes steps to initiate an investigation of a citizen based solely upon that 

citizen’s race, without more, then a violation of the Equal Protection Clause has occurred.’’ United States v. Avery, 137 F.3d 343, 355 (6th Circuit 1997). 

The United States Constitution itself prohibits ‘‘racial profiling,’’ making Federal 

legislation defining or prohibiting such activity unnecessary. I am sure that there 

is no one on this Subcommittee or in the United States Senate who would disagree 

that our Constitution prohibits the practice of ‘‘racial profiling.’’

Further, the F.O.P. contends that the legislation’s definition of ‘‘racial profiling’’

is far too broad. The bill prohibits the use of race ‘‘to any degree’’ in selecting individuals to be subject to even the most routine investigatory action, excepting only 

those situations in which race is used ‘‘in combination with other identifying factors 

when the law enforcement agent is seeking to apprehend a specific suspect whose 

race, ethnicity or national origin is part of the description of the suspect.’’

This means we might as well disband the F.B.I.’s Behavioral Science Unit, whose 

work includes conducting high-impact research and presenting a variety of cutting 

edge courses on topics such as Applied Criminal Psychology, Clinical Forensic Psychology, Crime Analysis, Death Investigation, and Gangs and Gang Behavior. The 

unit’s personnel are primarily Supervisory Special Agents and experienced veteran 

police officers with advanced degrees in the behavioral science disciplines who focus 

on developing new and innovative investigative approaches and techniques to the 

solution of crime by studying the offender, and his/her behavior and motivation. 

Sometimes, their profile of a suspect contains racial information, because race can 

and does have an impact on our psychology. In some cases, it may be the only physical description law enforcement has to go on. The profile provided by this unit in 

its work on the Unabomber case, for example, suggested that the suspect was a 

white male. Generally speaking, serial killers are much more likely to be white 

males than any other race or gender. 

Under this legislation, we would be unable to use information of this kind absent 

an eyewitness or other description of a specific suspect’s race or ethnicity. This bill 

is very specific on this point: law enforcement officers can never use race as a factor—even if it would help them to pursue an investigation, identify a suspect, prevent a crime or lead to an arrest. The proposed legislation would therefor ban a 

34

whole range of activities beyond the already unconstitutional, purely race-based activity. The legislation would also apply to Customs and immigration-related enforcement activities, as well as criminal law enforcement efforts. 

What does this mean to the officer on the beat? That no minority will be stopped, 

searched or questioned no matter how suspicious the activity without a specific eyewitness account? Measures like this can only lead to situations like we have now 

in Cincinnati. Eighty-five (85) people have been wounded or killed in seventy-three 

(73) separate shooting incidents since the riots in April. Last year during the same 

time frame, there were nine (9) shootings and eleven (11) victims. None of the seventy-three (73) shootings since April have received media attention like the death 

of Timothy Thomas. Or even that of Ricky Moore, who ambushed and attempted to 

kill Officer Thomas Haas. Why? Do we as a nation not care about black-on-black 

violence? The Over-the-Rhine community does, and that includes the police officers 

who live and work there. Hamilton County Prosecutor Mike Allen said of the neighborhood, ‘‘It’s like the killing fields, it’s like the Wild West down here. There is still 

the same lawlessness that went on during the riots. And the criminals know that 

the police are now reluctant to take action.’’

Lieutenant Ray Ruberg of the Cincinnati Police Department said, ‘‘Our discretion 

has been limited. . .The racial profiling forms policy also went into effect in May, 

and a lot of officers now feel they have to articulate for every stop and that, in turn, 

will limit stops.’’

Keith Fangman, the president of the local Fraternal Order of Police, said ‘‘The 

city has never seen this level of violence. This is an epidemic of crime.’’

The numbers bear all three of these observations out. Last year there were nine 

(9) shootings between April and July—this year there were seventy-three (73). Arrests have dropped fifty percent (50%) since April and traffic stops have dropped by 

sixty percent (60%). 

Every cop on the beat in Cincinnati knows that if something goes wrong, even 

the slightest mistake when made in that split second, their jobs, lives and families 

could be at risk. Good policing, pro-active policing that deters and prevents crime, 

cannot occur in these conditions. 

This bill would elevate that problem to a national level. Criminals in our communities will know that the police have their hands tied and can no longer be effective. 

This same pattern is being repeated throughout the nation. When the mayor of 

Minneapolis accused his police force of ‘‘racial profiling,’’ traffic stops dropped sixtythree percent (63%). 

‘‘Solutions’’ are being presented by politicians to a dubious problem that they cannot define. The result is a deleterious effect on public safety and the maligning of 

our country’s police officers. 

I also want to question this legislation’s proposal to use statistical data against 

law enforcement officers and agencies in court. This is a terrible precedent to set. 

This bill assumes that ‘‘racial profiling’’ has occurred solely on the basis of a statistical disparity. Section 102(c) of the bill provides that demonstrating that law enforcement activities disparately impact racial or ethnic minorities constitutes prima 

facie evidence of illegal activity. The effect of this presumption is not expressly 

spelled out in the legislation, but it is very clear to law enforcement. The resulting 

litigation burden on law enforcement agencies will be dramatic—after all, once a 

‘‘disparate impact’’ is demonstrated, it will be up to the law enforcement agency to 

somehow prove itself innocent of engaging in the unlawful use of race in its procedures and practices. 

The legislation thus presumes illegal activity solely from evidence of a statistical 

disparity, notwithstanding the bill’s finding that ‘‘[t]he vast majority of law enforcement agents nationwide discharge their duties professionally, without bias, and protect the safety of their communities.’’ If the ‘‘vast majority’’ of police officers are conducting themselves professionally and without bias, why does a statistical disparity 

change that? 

There is no study or other hard data that can withstand even cursory scrutiny 

which can substantiate claims that police systematically practice selective enforcement against minorities. None. Even the finding of former New Jersey Attorney 

General Peter Verniero that found fifty-three percent (53%) of consent searches—

searches that the driver consents to—between 1994-98 were minorities is meaningless. It is meaningless because Attorney General Verniero did not include racial information on searches that were denied. He mixes stops, searches and arrests from 

different time periods. But the most important reason that this statistic is invalid 

is because there is nothing to compare it to—why is it ‘‘too many?’’ Statistics from 

other government sources in New Jersey demonstrate that minorities are vastly 

overrepresented in the drug trade. Over sixty percent (60%) of drug and weapons 

35

arrests in New Jersey are black, even though they make up less than fourteen percent (14%) of the population. Given this, State police search rates are proportionate. 

Statistically, minorities have a greater chance of being crime victims because 

crimes occur more frequently in areas with a large minority population. Good policing means going after criminals and patrolling areas where crimes are committed. 

This is good police work—not racism. 

Consider the case of the Arlington County Virginia Police Department, which responded to demands from the black community to step up enforcement against drug 

dealers in minority neighborhoods. The police instituted aggressive motor-vehicle 

checks, revived the use of ‘‘jump out’’ squads and cracked down on quality-of-life offenses in an effort to make dealers uncomfortable in the neighborhood. By the end 

of last summer, it was clear the new enforcement strategy had worked, earning the 

police deserved praise from the community as a whole. But the new policing strategy, which was devised in response to the disproportionate victimization of minorities by minorities, generated a lot of data showing ‘‘disproportionate’’ minority arrests. If this bill were adopted, any of the minority criminals arrested and prosecuted could bring legal action against the County of Arlington, the department or 

the arresting officer. The criminal would be able to point to the ‘‘disparate impact’’

on the minority community and have evidence—prima facie evidence, mind you—

in support of any action brought pursuant to Title I of S. 989. 

To use statistical data without an adequately sophisticated benchmark for analysis is bad policy. The law cannot consider individual enforcement incidents as racially motivated by using flawed data and reckless analyses establishing a ‘‘disparity.’’

I also want to say a word about the police practice of criminal profiling. This is 

a legitimate and effective law enforcement tool which I believe is being unfairly maligned in the media and here on Capitol Hill because it is now associated with race. 

Race can be a factor in a criminal profile, but it is never the only factor, nor is it 

the most significant factor. It is simply one of many. 

No one ought to be stopped solely on the basis of their race; this practice is wrong 

and does not serve the law enforcement mission. But to contend that the successful 

practice of profiling—which does not consider race exclusively—be abandoned when 

it has proved to be a successful tool to prevent crime and catch criminals is not the 

answer. If this practice is misused or misunderstood, then it must be corrected. Racism is never a legitimate law enforcement tool. 

When any employer is considering applicants, they have an idea of not only the 

skills and abilities that the job requires, but also what kind of person would make 

the best fit—a ‘‘profile,’’ if you will. Character matters, which is why law enforcement managers conduct—or ought to conduct—extensive background checks to ensure that the person who will carry the badge is of the highest caliber. 

I ask the Subcommittee to also consider the practice of crime-mapping, which, for 

all intents and purposes can also be referred to as geographic profiling. This, too, 

is proving to be an extremely useful crime-fighting and crime-prevention tool. It has 

evolved far beyond push pins on a wall map to become sophisticated computer models that allow law enforcement to ‘‘predict’’ crimes and establish more effective patrols to enhance public safety. 

Crime mapping data can and does use such demographic factors such as population density, race and poverty levels. I have attached to my testimony a simplified 

‘‘crime map’’ of homicides committed in Washington, D.C. from 1994-95. In the time 

frame examined, seven hundred and sixty-five (765) homicides were committed—

twenty (20) of which were west of the 16th Street ‘‘line’’ and only one (1) which was 

committed west of Rock Creek. 

Crime is human activity and therefore has spatial relationships and characteristics that can be geographically plotted. The same profiling is also useful in crime 

prevention and crime fighting when applied to crime victims. Racial data is important here, too. The crime map provided shows the overwhelming preponderance of 

homicides in Washington, D.C. in 1994-95 were committed in predominately black 

areas. Is this racial profiling?

36

Nationally, according to the Bureau of Justice Statistics, there were 5.1 homicide 

victims per 100,000 non-Hispanic white males in 1995—the rate for blacks that 

same year was 57.6, more than 10 times the white rate. Most violent crime is 

intraracial—more than 80 percent of homicides where we know the race of the killer 

are either white-on-white or black-on-black crimes. Given this data, how can we 

adopt a measure that would prevent its use in solving homicides if we cannot consider the race of the suspect unless there is an eyewitness description? 

What is also offensive to me as an American is that the legislation focuses on protecting racial and ethnic minorities, rather than protecting all individuals from discrimination on the basis of race and ethnicity. Unlike all other Federal antidiscrimination statutes, which generally protect all individuals from discrimination on the 

basis of race, portions of this legislation are geared to protecting only racial and ethnic minorities. For example, the ‘‘disparate impact’’ provisions found in section 

102(c) of the bill are available only to racial and ethnic minorities. Any legislation 

that specifically targets only members of certain races, while excluding members of 

other races, presents very real equal protection problems. 

Again, to use Washington, D.C. as an example, the unfairness of the bill is plainly 

demonstrated. According to the most recent census, 30.8% of this city’s population 

is white and sixty percent (60%) is black. If this bill were to become law, if thirtytwo percent (32%) of all persons arrested in Washington were white, this ‘‘disparity’’

would not be evidence under Title I of the bill. However, if sixty-one percent (61%) 

of all persons arrested were black, this would be a ‘‘disparate impact’’ and could be 

used in any legal action taken against the Metropolitan Police Department. How 

does this help ease racial tensions in this city or across the country? 

The bill also misstates current law by reading the U.S. Supreme Court’s decision 

in Whren v. United States (1996) to hold that ‘‘the racially discriminatory motive of 

a police officer in making an otherwise valid traffic stop does not warrant the suppression of evidence.’’ To the contrary, according to the unanimous decision in 

Whren, ‘‘the Constitution prohibits selective enforcement of the law based on considerations such as race,’’ and that ‘‘the constitutional basis for objecting to intentionally discriminatory application of the laws is the Equal Protection Clause.’’ 517 

U.S. at 813. 

The legislation also states that ‘‘[r]acial profiling is not adequately addressed 

through suppression motions in criminal cases,’’ implying that suppression motions 

are currently the sole legal remedy available against the so-called practice of ‘‘racial 

profiling.’’ However, numerous remedies do exist under current law to redress constitutional equal protections violations, including actions for money damages as well 


80475.001
37

as prospective relief under 42 U.S.C. Section 1983, 42 U.S.C. Section 2000(d) et. 

seq., and 42 U.S.C. Section 14141. 

The legislation also imposes a number of mandates on State and local governments in violation of the principles of Federalism. The bill mandates that all State 

and local governments collect data, pursuant to Federally established standards, to 

determine whether ‘‘racial profiling’’ is taking place as a condition of receiving Federal monies—even if there is no evidence or complaint that a particular agency has 

engaged in such activity. Noncompliance with this mandate is punishable by the 

withholding of Federal funds. These provisions may even violate the constitutional 

limits of the ability of Congress to regulate State and local governments as a condition of Federal funding. On a number of occasions, the Supreme Court has expressed a narrow view with respect to Federal power to regulate State and local 

governments pursuant to Section 5 of the Fourteenth Amendment, absent substantial evidence that constitutional rights are being violated. 

Mandatory data collection is also not sound policy from a public safety perspective, because it would require law enforcement officers to engage in the collection 

of sociological data. When you add to the list of things that police officers have to 

do, you are necessarily subtracting from the law enforcement mission. Police officers 

are supposed to prevent crime and catch crooks, not collect data for Federal studies. 

How can we achieve a color-blind society if policies at the Federal level require 

the detailed recording of race when it comes to something as common as a traffic 

stop? Should the passenger’s race be recorded? Why not? Some traffic stops do result 

in the arrest of the passenger. What about the officer’s race? Should that be recorded so that officers can be assigned to beats based on their ethnic background? 

And what if the officer is unable to determine the driver’s race? Will police officers 

now be required to ask for ‘‘Driver’s license, registration and proof of ethnicity, 

please?′′ I submit to this Subcommittee that we do have a problem in our nation today— the lack of trust and respect for our police officers. Police officers also have a problem in that they have lost the trust, respect and cooperation of the minority community. This is tragic because it is minorities in our country that are most hurt by 

crime and violence. This bill, however, is not the solution. It will make matters 

worse, not better. 

Let me give you another example of a bad idea. Prior to the media’s misuse of 

the term ‘‘racial profiling,’’ Jack Levin of Northeastern University suggested a way 

to end racially-charged confrontations between police and minority communities. He 

said, ‘‘White police officers should never knowingly confront black suspects’’ (USA 

Today, 28 October 1996). This suggestion is ludicrous. Its very premise is that individuals of different racial and ethnic backgrounds are simply unable to interact with 

one another without violence. 

I reject that premise, Mr. Chairman. All of us should. And I submit that the 

premise of S. 989 is similarly flawed. 

Racial tensions here in Washington, D.C. are not atypical of any other urban area. 

The Washington D.C. Metropolitan Police Department is sixty-seven percent (67%) 

black in a city where the black population is only sixty percent (60%). Does this 

mean that sixty-seven percent (67%) of the Metropolitan police officers should never 

confront white, Hispanic or Asian suspects? How does this make our streets safer? 

How is this good police work? 

Legislation like S. 989 emphasizes racial differences. It will, in fact, make police 

officers much more aware of race when our objective should be to de-emphasize the 

race of the suspect. Consider this scenario: A police officer stops four drivers, all of 

whom are black. How is that officer to respond to allegations by the fifth driver—

who may be white, Asian or Latino—that they were only stopped to inoculate the 

officer against charges of racism. Can a case be made that the officer’s decision is 

racially motivated? This is the exact opposite of our intent. 

This bill will actually increase the unfounded allegations of racism when drivers 

and officers are of a different race. Racial tensions will increase, not decrease, if this 

bill’s measures are given the force of law. Supreme Court Justice Antonin Scalia eloquently reminded us, ‘‘To pursue the concept of racial entitlement—even for the 

most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. 

In the eyes of government, we are just one race here. It is American.’’ Instead of 

officers looking at someone as a human being, this bill would require them to make 

racial and cultural distinctions between the communities they serve because they 

know their choices will be scrutinized from that perspective by political leaders, police managers, and the Federal government. 

A police officer who makes a stop or an arrest—no matter what that officer’s racial background—must balance the constitutional rights of the suspect with their 

38

duty to guard the public safety and preserve the peace. No one, however, seems to 

consider that the officer is as much a citizen entitled to his or her rights as any 

suspect from any allegation. Unlike most professions, many rank-and-file police officers are not, particularly in employment and disciplinary matters, guaranteed their 

constitutional due process protections in this country. Too often, their rights are discounted. The United States Congress has actively considered legislation similar to 

S. 989 for the past six years. The last time that legislation protecting the due process rights of police officers was ten years ago in 1991. 

I do not know if, let alone how, we as a nation can solve the problems of racism. 

But I do know what will and will not work in the profession of law enforcement. 

There is a mistaken perception that the ugliness of racism is part of the culture of 

law enforcement. It is incumbent on all of us to correct that perception. This bill 

was written with this mistaken perception in mind—and it reinforces it. This legislation is not good public safety policy and will not result in good policing. It will 

not help to rebuild the trust between law enforcement and the minority community. 

For these reasons, the Fraternal Order of Police strongly opposes the bill and I 

urge this Subcommittee to reject it. 

Mr. Chairman, I want to thank you for the opportunity to appear before the Subcommittee today.

Chairman FEINGOLD. Thank you, Mr. Young, for your willingness 

to testify before the Subcommittee. 

Our next witness is Mr. Raymond Kelly. Mr. Kelly is the former 

Commissioner of the U.S. Customs Service, and also the former 

Commissioner of the New York City Police Department. Under this 

direction, as we have heard today, the Customs Service has made 

great progress in addressing racial profiling. 

Welcome. Thank you for being here and you may proceed. 

STATEMENT OF RAYMOND W. KELLY, FORMER COMMISSIONER, UNITED STATES CUSTOMS SERVICE, AND FORMER 

COMMISSIONER, NEW YORK CITY POLICE DEPARTMENT, 

NEW YORK, NEW YORK 

Mr. KELLY. Thank you, Mr. Chairman. I want to thank Senator 

Durbin, though he is not here, for those generous remarks that he 

made. 

In my experience, there is no greater threat to the credibility of 

law enforcement than racial profiling. Any agency that ignores this 

threat or delays in taking precautions against it risks not only its 

reputation, but the compact of trust between government and the 

rest of society. 

Today, I would like to talk to you about one agency’s approach 

to dealing with this issue, the United States Customs Service. Before the beginning of my tenure there, Customs began to receive allegations that its inspectors were using race in deciding which passengers to search. These allegations were very disturbing, to say 

the least. It was certainly not the agency’s policy, and in no way 

were we prepared to accept it as our practice. 

As you know, one of Customs’ chief responsibilities is to keep 

dangerous contraband from crossing U.S. borders. The fact is most 

travelers entering our country are law-abiding, but there exists a 

small percentage that are not. One of the responsibilities of the 

Customs Service is to stop them from smuggling narcotics and 

other dangerous contraband into the country. 

Customs searches an extremely small percentage of travelers, 

about 1 every 9 among the approximately 80 million commercial 

air passengers entering the U.S. each year. To accomplish its mission, Customs has broad search authority, the broadest of any law 

39

enforcement agency in the land. Inspectors can stop, search and detain travelers based on reasonable suspicion; that is, specific factors that may lead those officers to believe someone would be carrying drugs or other contraband. 

Under no circumstances do these factors ever include a person’s 

race. So when complaints of racial profiling surfaced, we moved 

quickly to review all aspects of our personal search policy. Our preliminary review showed no specific incident of bias, but we did find 

lapses in management and supervision that contributed to incidents of improper conduct, poor judgment and insensitivity to the 

rights of travelers. 

Not satisfied with an internal assessment alone, we immediately 

appointed an independent outside commission of government and 

community leaders to conduct a study of Customs personal search 

policies. Commission members were given unfettered access to Customs data, facilities and personnel across the country. 

In the meantime, we began a number of immediate reforms. 

First and foremost, we increased the role of supervisors in the personal search process. Where in the past any individual inspector 

could decide whether or not to make a personal search, we ensured 

that a supervisor reviewed that decision. Moreover, any decision to 

move someone to a facility for a medical examination had to be approved by a port director, the highest-ranking Customs official onsite. 

We bolstered training for our employees. We mandated new cultural interaction and personal search training for all our inspectors, about 8,000 people. We also rewrote our personal search policies, eliminating any phrase that could remotely be construed as 

bias, and compiled them into a single handbook. We increased legal 

oversight of the process. We made Customs lawyers available 24 

hours a day by phone to inspectors to advise on the legal grounds 

for searches. 

We implemented a new policy that requires Customs officers to 

consult with the local U.S. Attorney’s office for any prolonged detentions. In the past, Customs could hold someone indefinitely, 

without permitting contact with family or friends. New notification 

rules allow anyone detained to inform someone of his or her delay 

within 2 hours. 

Recordkeeping, in general, was poor. Data collection on personal 

searches was weak and inconsistent. We instituted mandatory data 

collection on the race, gender, age and citizenship of persons 

searched, as well as the reasons for the search. We formed the national passenger data analysis unit at headquarters to examine 

that data. I received updates every morning on the searches that 

were conducted. 

We made major investments in new, non-intrusive technology 

and x-ray equipment. We undertook a major information campaign 

with the traveling public, and we enhanced the role and visibility 

of Customs passenger service representatives. We developed a passenger rights brochure that explained the rights of travelers and 

their obligations under U.S. law. We also created a new customer 

satisfaction unit at headquarters to handle complaints and other 

issues, and a national comment card program through which travelers can submit their feedback to Customs. 

40

To sum up, improved supervision, better training, enhanced legal 

oversight, better data collection, better technology, better communication with the traveling public—these were the pillars of our reforms. 

While changes like these require time to take hold, we were very 

encouraged by the results. Nationally, Customs was searching far 

fewer people than it ever did before, while increasing its overall 

level of seizures. Customs cut the number of personal searches significantly, from just over 43,000 searches in 1998 to just over 9,000 

in the year 2000. Yet, the number of positive searches yielding 

drugs actually increased dramatically. Those numbers showed us 

that we could identify narcotics traffickers without trampling on 

the rights of the law-abiding public. 

In June 2000, the personal search commission issued its report. 

They acknowledged, in their words, the series of ‘‘bold reforms’’

Customs had taken. While the report did not find specific evidence 

of bias, they did offer 20 recommendations to further safeguard the 

rights of travelers, and those recommendations are being implemented. 

Having been involved in this issue for a long time, I know one 

thing for certain. This is not a problem from which law enforcement can simply walk away and declare victory. Policies must be 

monitored constantly to ensure that changes become embedded in 

the culture of the organization. 

It is my hope that enforcement agencies will voluntarily adopt 

policies that require the recording of stops and searches of all citizens. Emerging technologies will make this process less time-consuming and easier for management to monitor. It is my view that 

such practices will not adversely impact on effective law enforcement in any way. It is also my hope that respected national law 

enforcement organizations, such as PERF, will support such policies and publish documents outlining best practices regarding the 

carrying out of stop and frisk procedures. 

However, if Federal and State agencies lag in the adoption of 

these policies, then legislation will be required. There is simply no 

place for racial profiling in American law enforcement, not in the 

Customs Service or anywhere else. 

Thank you. 

[The prepared statement of Mr. Kelly follows:]

STATEMENT OF RAYMOND W. KELLY, FORMER COMMISSIONER, UNITED STATES CUSTOMS SERVICE, AND FORMER COMMISSIONER, NEW YORK CITY POLICE DEPARTMENT, 

NEW YORK, NEW YORK

Senator Feingold, members of the sub-committee, thank you for your invitation 

to testify today. In my experience, there is no greater threat to the credibility of law 

enforcement than racial profiling. Any agency that ignores this threat, or delays in 

taking precautions against it, risks not just the reputation of the organization in 

question. . .but the very compact of trust and fairness between government and the 

people upon which civil society rests. 

Today I’d like to talk to you about one agency’s approach to dealing with this 

issue. The U.S. Customs Service, where I served as Commissioner from August 1998 

through January 2001. Before the beginning of my tenure, Customs began to receive 

allegations from certain members of the traveling public that, in specific incidents, 

agency personnel had selected commercial air passengers for physical searches 

based on race. These allegations were very disturbing, to say the least. It was certainly not agency policy to use such tactics in our enforcement mission. In no way 

were we prepared to accept it as part of our practice. As you know, one of Customs’

41

chief responsibilities is to keep dangerous contraband from crossing U.S. borders. 

The fact is, the great majority of travelers entering our country are law-abiding. But 

there exists a small percentage who are not, and who contribute to the illegal drug 

menace by smuggling narcotics. It’s the difficult job of the Customs service to stop 

these individuals. The job is even more difficult when it comes to stopping those 

who conceal drugs on or in their bodies, particularly those arriving by commercial 

air. 

To put this in the proper perspective, Customs searches an extremely small 

amount of the approximately eighty million commercial air passengers entering the 

U.S. each year. Today, that figure is about one out of every nine thousand travelers 

who arrive. 

To accomplish this difficult aspect of its mission, Customs has been granted very 

broad search authorities the broadest of any law enforcement agency in the land. 

Inspectors can stop, search, and detain travelers based on reasonable suspicion-that 

is, based on specific factors that may lead those officers to believe someone may be 

carrying drugs. Those criteria are clearly outlined in the intensive training provided 

to Customs personnel. Under no circumstances, whatsoever, do these factors ever 

include a person’s race. When complaints of racial profiling surfaced, we moved 

quickly to review all aspects of our personal search policy. Our preliminary reviews 

showed no specific incidents of bias. But we did find lapses in management and supervision that contributed to instances of improper conduct, poor judgment, and insensitivity to the rights of travelers. Not satisfied with an internal assessment 

alone, we immediately appointed an independent, outside commission of government 

and community leaders to conduct a study of Customs personal search practices in 

April of 1999. 

Commission members were given unfettered access to Customs facilities and personnel across the country. They were also provided with whatever statistics and information they needed to compile their reports. In the meantime, we began a number of immediate reforms. First and foremost, we increased the role of supervisors 

in the personal search process. Where, in the past, any individual inspector could 

decide whether or not to make a personal search, we ensured that a supervisor subsequently approve that decision. Moreover, any decision to move someone to a facility for a medical examination had to be approved by a port director, the highestranking customs official on site. 

We bolstered training for our employees. We mandated new cultural interaction 

and personal search training for all our inspectors. . .that’s about eight thousand 

people. We also rewrote our personal search policies, eliminating any phrase that 

could remotely be construed as bias, and compiled them in a single handbook. We 

increased legal oversight of the process. We made Customs lawyers available twenty-four hours a day by phone to inspectors to advise on the legal grounds for 

searches. We implemented a new policy that requires Customs officers to consult 

with the local U.S. Attorney’s office for any prolonged detentions. In the past, Customs could hold someone indefinitely without permitting contact with friends or 

family. New notification rules allow anyone detained to inform someone of his or 

her delay within two hours. 

Record keeping, in general, was poor. Data collection on personal searches was 

weak and inconsistent. We instituted mandatory data collection on the race, gender, 

age and citizenship of persons searched, as well as the reasons for the search. We 

formed a national passenger data analysis unit at headquarters to examine that 

data. I received updates every morning on the searches we conducted. 

We made major investments in new, non-intrusive technology and x-ray equipment. These included the purchase of body scan machines and mobile x-ray equipment that minimize the need for physical contact and time-consuming trips to the 

hospital. That technology was deployed at major international airports across the 

country .We undertook a major information campaign with the traveling public. 

That campaign began with an outside consultant’s review of our passenger processing areas. Based on the consultant’s findings, we implemented a series of 

changes including better signage. Enhancing the role and visibility of Customs’ passenger service representatives. And designing new declaration forms to eliminate 

confusion for travelers. We also put out new brochures that explain why Customs 

performs inspections and searches. These include a document entitled ‘‘Why Did 

This Happen to Me?’’ which explains the personal search porcess to those who are 

referred for a secondary inspection. We also developed a passenger rights brochure 

that explains the rights of travelers and their obligations under U.S. laws. We created a new customer satisfaction unit at headquarters to handle complaints and 

other issues. And a national comment card program, through which travelers can 

submit their feedback to Customs. 

42

To sum up. . .Improved supervision. . .Better training. . .Enhanced legal oversight. . .Better data collection. . .Better technology. . .Better communication with 

the traveling public. . .These were the pillars of our reforms. 

While changes like these require time to take hold, we were very encouraged by 

the early results. Nationally, Customs was searching far fewer people than it ever 

did before, while maintaining its overall level of seizures. 

Customs cut the number of personal searches significantly-from just over 43, 000 

thousand searches in 1998 to just over nine thousand in the year 2000. Yet, the 

number of positive searches yielding drugs actually increased dramatically. Those 

numbers showed us that we could engage the narcotics traffickers vigorously, without allowing the rights of the law-abiding public to become casualties in the counterdrug fight. In addition, our comment card program indicated that our changes were 

being well received by the public. We mandated that officers give anyone who goes 

through a secondary inspection a comment card. They were also made available to 

any traveler passing through our processing areas. As of the close of 2000, we received well over 15,000 cards. Eighty percent complimented Customs and the work 

of our inspectors. I understand that rate has held steady through today. 

In June 2000, the personal search commission and the independent advisor issued 

their reports. They acknowledged, in their words, the series of ‘‘bold reforms’’ Customs had taken. While neither report found specific evidence of bias they did state 

that more precautions could be taken, and offered twenty recommendations to further safeguard the rights of travelers. We assembled a special, high level internal 

committee of customs managers to assess, implement, and monitor those findings. 

Having been involved with this issue for a long time I know one thing for certain. 

This is not a problem from which law enforcement can simply walk away and declare victory. Policies must be monitored constantly to ensure that changes become 

embedded in the culture of the organization. 

It is my hope that enforcement agencies will voluntarily adopt policies that require the recording of stops and searches of all citizens. Emerging technologies will 

make this process less time consuming and easier for management to monitor. It 

is my view that such practices will not adversely impact on the effective law enforcement in any way. It is also my hope that respected national law enforcement organizations, such as PERF, will support such policies and publish documents outlining 

best practices regarding the carrying out of stop and frisk procedures. However, if 

federal and state agencies lag in the adoption of these policies, then legislation will 

be required. There is simply no place for racial profiling in American law enforcement. Not in the Customs Service or anywhere else. 

Thank you again, Mr. Chairman, for this opportunity to testify.

Chairman FEINGOLD. Thank you, Mr. Kelly, for your testimony 

and for your longstanding dedication to solving this problem. 

Now, I would like to welcome Chief Reuben Greenberg, the Chief 

of Police of Charleston, South Carolina. He has been the Chief in 

Charleston since 1982. Chief Greenberg has extensive law enforcement experience, having served in law enforcement agencies in 

Florida, Georgia, Alabama and California. 

Chief, it is an honor to have you appear before this Subcommittee. Thank you for coming and you may proceed. 

STATEMENT OF REUBEN M. GREENBERG, CHIEF OF POLICE, 

CHARLESTON POLICE DEPARTMENT, CHARLESTON, SOUTH 

CAROLINA 

Mr. GREENBERG. Thank you, sir, and thank you for providing me 

with the opportunity to make a presentation this morning. 

I am certainly confident that if the average law enforcement officer in this country had the opportunity to be here this morning and 

hear some of the comments that have been made regarding racial 

profiling, the vast majority, almost all of them, would agree with 

you that racial profiling is wrong. You don’t have to be a lawyer 

to know that it is probably unconstitutional, it is unjust, it is unAmerican, and it violates the Equal Protection Clause of our Constitution. They could easily, as I do, agree with you on that. 

43

The difficulty is that racial profiling, while it is a demonstrated 

problem in 1 or 2 or 3 or 4 or 5 or 10 or 50 law enforcement agencies in our country, it is a very, very small problem. We have almost 18,000 different law enforcement agencies in the United 

States, and to demonstrate that 3 or 4 or 10 or 50, as I say, of 

those agencies are outside the line does not mean that law enforcement is a profession that harbors persons who have racist views. 

I would like to congratulate, as people have here this morning, 

Commissioner Kelly on the many initiatives that he has made regarding this issue, but this is not the only issue which he has developed successful resolutions for. He has served in other positions, 

as has been noted, and he has developed various types of techniques to resolve other law enforcement-related problems as well. 

But there are a great many Commissioner Kellys out there; he 

is not the only one. The National Organization of Black Law Enforcement Executives is just one agency in which many such persons exist. The International Association of Chiefs of Police, the Police Executive Research Forum—all of these agencies are made up 

of members who have the same types of orientations and the same 

types of abilities that Commissioner Kelly has. 

The difficulty that we see with a Federal approach to this particular alleged problem of racial profiling is that under the Federal 

initiatives, it generally has the same thing for all; that is, the same 

fix for all problems, both great and small, all across the country. 

We do not all need to have the same remedy. 

As Commissioner Kelly was able to act very affirmatively without being demanded to do so or required to do so by law, but simply because it was right to do so, he came up with some very interesting and practical and self-initiated procedures in order to reduce 

what may have been a serious problem in his particular former 

agency. 

It is interesting that the topic of racial profiling is debated and 

discussed as much as it is, when we are unable to define it or 

measure it or even to recognize where it is or where it is not. The 

racial profiling debate is really, in the main, a special debate regarding the enforcement of laws against narcotics. Those persons 

who are in favor of legalizing or decriminalizing narcotics or other 

prohibited drugs have directed their opposition to enforcement of 

these laws by attempting to argue that the enforcement amounts 

to a declaration of war against certain minorities. 

The prize that they truly seek in many cases is not relief for 

some alleged form of unconstitutional police action against minorities, but more directly they seek to inculcate a procedure so cumbersome and unwieldy that there cannot exist any meaningful and 

practical enforcement of laws against drug trafficking, distribution 

and possession. The fact that some drug trafficking and distribution is engaged in by some members of certain racial or ethnic 

groups is being utilized to blunt or even discourage drug enforcement in general. 

We have a number of problems in law enforcement, but I don’t 

believe that racial profiling is one of them. As indicated earlier, it 

is a very, very small problem in a few places that exists. It is not 

something that permeates all of law enforcement. 

44

I believe that the people who argue that a disproportionate number of persons from various ethnic groups are convicted of various 

crimes and sentenced to jail derive from alleged unconstitutional 

contact that law enforcement personnel have with these groups— I don’t believe that is the case. They prefer to ignore the factual 

data that indicate that these groups have a disproportionate contact with perpetrators of certain crimes also because these groups 

are also greatly disproportionate numbers of crime victims as well. 

For example, while many diagnosticians of racial profiling are 

anxious to tell you the various percentages of racial minorities who 

travel a given stretch of highway, they are oblivious to the astronomically high rates of victimization endured by certain racial minorities. For example, as has been pointed out here, African-Americans are 12 percent of the national population, nonetheless 54 percent of annual homicide victims and 44 percent of sexual assault 

victims. These things need to be addressed as well, and I truly 

wish that there was some Federal legislation that could be oriented 

toward reducing the incidence of victimization that African-Americans and other minorities suffer in our country. 

Thank you very much. 

[The prepared statement of Mr. Greenberg follows:]

STATEMENT OF REUBEN M. GREENBERG, CHIEF, POLICE DEPARTMENT, CHARLESTON, SOUTH CAROLINA

RACIAL PROFILING

It is interesting that the topic of racial profiling is debated and discussed as much 

as it is when we are unable to define it or measure it or even to recognize where 

it is or is not. The racial profiling debate is really in the main a special debate regarding the enforcement of the laws against narcotics. Those persons who are in 

favor of legalizing or decriminalizing narcotics and other prohibited drugs have directed their opposition to enforcement of these laws by attempting to argue that the 

enforcement amounts to a declaration of war against certain minorities. The prize 

they truly seek is not relief of some alleged form of unconstitutional police action 

against minorities but more directly they seek to inculcate a procedure so cumbersome and unwieldy that there can not exist any meaningful and practical enforcement of laws against drug trafficking distribution and possession. 

The fact that some drug trafficking and distribution is engaged in-by some members of certain racial and ethnic groups is being utilized to blunt or discourage drug 

enforcement in general. 

Some persons even argue that the disproportionate number of persons from these 

ethnic groups that are convicted of various crimes and sentenced to jail derive from 

the alleged unconstitutional contact the law enforcement personnel have with these 

groups. They prefer to ignore the factual data that indicates that these groups have 

a disproportionate contact as perpetrators of certain crime is because these groups 

are also greatly disproportionate numbers of crime victims. For example, while 

many diagnosticians of racial profiling are anxious to tell you the various percentages of racial minorities who travel a given stretch of highway, they are oblivious 

to the astronomically high rates of victimization endured by certain racial minorities. African Americans 12% of the national population—54% of annual homicide 

victims—44% sexual assault victim, etc. 

It seems to me that there will or should rightfully be a disproportionate number 

of minorities being contacted by the police as long as a disproportionate number of 

minorities suffer as victims of general crime. Most police contact is initiated by a 

complaint or a request for police action made by a concerned citizen or victim. Police 

officers are not driving around looking for minorities to stop or investigate for the 

sake of harassment. They do attempt to enforce the law or deter crime and provide 

for community safety by taking reasonable and responsible actions to do so. To 

thwart this law enforcement effort in the interests of promoting some selfish, unnecessary, unhealthy, hedonistic and dangerous goal is unwarranted and wrong. These 

persons cannot be permitted to use such unethical means to reverse legitimate court 

decisions and their outcomes.

45

Chairman FEINGOLD. Thank you, Chief, for your testimony. 

Our next witness is Ronald L. Davis, a captain in the Oakland 

Police Department and the Region VI Vice President of the National Organization of Black Law Enforcement Executives, known 

as NOBLE. He is the primary author of NOBLE’s report entitled ‘‘A NOBLE Perspective: Racial Profiling: A Symptom of Bias-Based 

Policing.’’ Captain Davis, we appreciate your being here. 

STATEMENT OF RONALD L. DAVIS, CAPTAIN, OAKLAND POLICE DEPARTMENT, AND REGION VICE PRESIDENT, NATIONAL ORGANIZATION OF BLACK LAW ENFORCEMENT EXECUTIVES, OAKLAND, CALIFORNIA 

Mr. DAVIS. Thank you, sir. Chairman Feingold and distinguished 

Committee members, let me begin with a brief history of NOBLE. 

NOBLE was formed in 1976 and we are currently celebrating our 

25th anniversary here in the Nation’s Capital, so you all are invited to join us tonight for our celebration. 

NOBLE has grown from 60 founding members to an organization 

that now represents over 9,000 law enforcement executives, commanders and criminal justice professionals in over 50 chapters 

across the country. Like most things that are noble, they have 

started from humble beginnings. 

The basic mission of NOBLE is to ensure equity in the administration of justice and serve as the conscience of law enforcement. 

NOBLE has issued its report on racial profiling which outlines our 

position and makes recommendations to local, State and Federal 

legislators and the United States Attorney General. Copies of the 

report have been provided. 

NOBLE has also developed what is considered by many as the 

most effective racial profiling training in the country. From the 

onset, NOBLE has been active in addressing the issue of racial 

profiling and bias-based policing. There is no other organization in 

this country that has such a unique perspective. 

First, as African-American persons, we have been victims of racial profiling. Second, as police practitioners, we have been guilty 

of racial profiling. And, third, as police executives we are responsible to end racial profiling. 

In 1999, NOBLE adopted a resolution supporting the Traffic Stop 

Statistics Act, introduced by Congressman Conyers. In 2001, at the 

first day of our national conference, NOBLE adopted a joint resolution with the Alliance of National Minority Law Enforcement Organizations supporting the End Racial Profiling Act of 2001. The Alliance represents every major minority law enforcement organization 

in this country. It is NOBLE, it is the National Black Police Association, the Hispanic American Police Command Association, the 

National Latino Police Officers’ Association, the Asian American 

Command Officer Association, the Asian Police Officers’ Association, and the Native American Police Officers’ Association. As you 

can see, the Alliance does represent minority law enforcement. 

Our position is very simple. Racial profiling does, in fact, occur. 

We must first accept that racial profiling is not the sole problem 

or the root cause of the problem; it is a symptom of a much larger 

problem, which is bias. It is bias in our criminal justice system, it 

46

is bias in our society, and it is bias in policing, or as we call it, 

bias-based policing. 

It took data collection to convince America that racial profiling 

exists. I say America because make no mistake, as we see today, 

not all Americans agree that it does exist. A recent survey from my 

esteemed colleagues at the Police Executive Research Forum revealed that many police chiefs, minorities and non-minorities, believe racial profiling does not exist, and if it does, it is aberrant behavior or limited to a few bad apples. 

This survey explains why we need effective racial profiling legislation. Police administrators will not fix the problem if they cannot 

recognize there is a problem or have the tools to identify to what 

extent a problem is that exists. Many chiefs and police organizations believe the decision to collect stop data should be that of the 

local chief or his or her community. 

I have a question for that theory. What if it is one of the chiefs 

who answered the survey that it doesn’t exist? I think we can probably answer whether or not he or she will collect the data. How 

does a chief decide whether or not the community wants data collection? Is it by majority vote, majority of the minority, or majority 

of a select group? What does this process look like? The idea 

sounds great in theory. However, in practicality, it will result in 

minority voices being silenced by the majority will. 

For our highways to be truly freeways, we must ensure racial 

profiling ends in every city and by every officer in this country. It 

is the basis purpose of the Federal Government to protect and defend the Constitution of the United States. 

It was offered this morning that it is the job of the police to prevent crime and arrest bad guys. It is not. The basic oath of office 

is to protect and defend the Constitution of the United States. We 

will never compromise civil liberties for safe streets. 

Racial profiling legislation is needed to ensure that there is 

meaning or definition to racial profiling. We have to standardize 

the definition; it must mean the same thing, whether you are driving on a Maryland interstate or a California highway. A police officer must understand the impact and effect of bias-based policing to 

his or her community, whether in Oakland or Washington, D.C. 

Racial profiling legislation is needed to ensure police agencies operate within the guidelines of the Constitution, never sacrificing 

civil liberties for safe streets. It was also mentioned that if every 

police management operated as our esteemed colleague, Commissioner Kelly, we would not be here today. I must agree, but unfortunately we do not all operate the same way as Commissioner 

Kelly and the American people should not suffer for it. 

Racial profiling legislation is needed to hold law enforcement organizations and officers accountable. As a law enforcement manager, I cannot manage what I do not measure. Data collection is 

not the sole answer. We are not offering it as that. Data collection 

in most cases probably will not determine whether racial profiling 

exists in an agency. It will, however, identify the levels of bias in 

police operations. 

Moreover, it is critical in determining the effectiveness of programs and policies. If we make the reform that is necessary, how 

do we measure our successes? In management, one of the key facVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00050 Fmt 6633 Sfmt 6602 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
47

tors of any program that we try is to measure our effectiveness. We 

know this from the statistics. 

Racial profiling is not effective. Of the majority of stops in this 

country, about 3 to 6 percent lead to arrests, and the majority of 

those arrests are traffic-related offenses. So as we take a look at 

our murder rate and as we take a look at our crime rate, we are 

not catching the suspects or the perpetrators through car stops or 

through the stops that we are doing. Our success rates show that 

focusing on race or using race to any degree to determine stops, 

other than suspect description, is ineffective. 

As a law enforcement manager, I cannot establish an organizational tone or culture of accountability without sound policies and 

relentless enforcement of those policies. But those policies must be 

at the local, State and Federal level. It took legislation in this 

country to permit racial profiling discrimination to exist. It will 

take legislation to make it end. 

In closing, NOBLE has recommended to the Attorney General to 

form a national task force on racial profiling to ensure proper enforcement and enactment of the legislation. The task force would 

assist the Attorney General in identifying what data should be collected, help establish benchmarks, and develop comprehensive 

training programs and mediation services. 

It is truly an honor for me here today to provide you my testimony and I am very grateful. 

Thank you, sir. 

[The prepared statement of Mr. Davis follows:]

STATEMENT OF RONALD L. DAVIS, CAPTAIN, OAKLAND POLICE DEPARTMENT, AND RE- GION VI VICE PRESIDENT, NATIONAL ORGANIZATION OF BLACK LAW ENFORCEMENT

EXECUTIVES, OAKLAND, CALIFORNIA

INTRODUCTION

Good Morning: Chairman Feingold and distinguished committee members. I am 

Captain Ronald Davis of the Oakland Police Department and Region Vice President 

of the National Organization of Black Law Enforcement Executives (NOBLE). 

HISTORY OF NOBLE 

Let me begin with a brief history of NOBLE. NOBLE was formed in 1976, and 

we are currently celebrating our 25th anniversary in the nation’s capitol. If you get 

a chance, please stop by our 25th anniversary celebration tonight at the Mariott 

Wardman Park Hotel. Your presence will truly make it a memorable event. 

NOBLE has grown from 60 founding members to an organization that now represents approximately 9,000 law enforcement executives, commanders and criminal 

justice professionals in over 50 chapters across the country. Like most things that 

are NOBLE, they start from humble beginnings. 

The basic mission of NOBLE is to ensure equity in the administration of justice 

and serve as the conscience of law enforcement by addressing critical issues germane to improving both the law enforcement profession and its service to our communities. 

NOBLE is a member of the Community Policing Consortium and provides human 

diversity and community partnership training to law enforcement officers and community members across the nation. 

NOBLE has issued its report on racial profiling which outlines our position, and 

makes recommendations to local, state and federal legislators and the Attorney General. NOBLE has also developed what is considered by many as the most effective 

racial profiling training in the country. 

From the onset, NOBLE has been active in addressing the issues of racial 

profiling and bias-based policing. There is no other organization with such a unique 

perspective.

1. As African-Americans we have been victims of racial profiling; 

48

2. As police officers (practitioners) we have been guilty of racial profiling; 

3. As executives we are responsible to lead the fight to end racial profiling.

In 1999, NOBLE adopted a resolution supporting the Traffic Stop Statistic Act introduced by Congressman John Conyers. In 2001, NOBLE adopted a joint resolution 

with the Alliance of National Minority Law Enforcement Organizations supporting 

the ‘‘End Racial Profiling Act of 2001.’’

The Alliance represents the following organizations: The National Organization of 

Black Law Enforcement Executives (NOBLE), National Black Police Association 

(NBPA), the Hispanic American Police Command Association (HAPCOA), the National Latino Police Officers’ Association (NLPOA), the Asian American Command 

Officer Association (AACOA), the Asian Police Officers’ Association (APOA) and the 

Native American Police Officers’ Association (NAPOA). 

As you can see, the Alliance represents minority law enforcement in this country. 

Our position is simple. Racial profiling does in fact occur. We must first accept that 

racial profiling is not the sole problem or root cause of the problem - it is a symptom 

of a much larger problem which is bias. Bias in the criminal justice system, bias 

in our society and bias in policing or as we call it bias-based policing. 

NOBLE’s definition of bias-based policing is:

The act (intentional or unintentional) of applying or incorporating personal, 

societal or organizational biases and/or stereotypes as the basis or factors 

considered, in decision-making, police actions, or the administration of justice.

The debate is over - racial profiling exists and as President Bush has stated, ‘‘...we 

must end it.’’ This national acknowledgement came about as a result of data-collection. This was not always the case. Two years ago, many people and organizations 

believed racial profiling was only a perception in the minority community. Today, 

their perceptions have changed. 

Many of the same people and organizations now believe racial profiling legislation 

is not necessary because - ‘‘we know we have a problem.’’ I’m sure in two years this 

view will too change. 

It took data collection to convince America that racial profiling exists. I say America, but make no mistake this does not mean all Americans. There are still many 

that believe racial profiling does not exist. 

A recent survey by the Police Executive Research Forum (PERF) revealed that 

many police chiefs (minorities and non-minorities) believe racial profiling does not 

exist, or is aberrant behavior limited to a few ‘‘bad apples.’’

NOBLE recognizes that there are a few bad apples in every profession. We also 

recognize, and want our great nation to recognize, that our law enforcement officers 

are ‘‘NOBLE’’ men and women who want to provide service to our communities. 

Focusing solely on a ‘‘few’’ bad apples is not only a disservice to these fine men 

and women in blue, it is a disservice to the communities they serve. This is a 

sy9temic problem - it is the root of the tree that is bad. 

This explains why we need effective racial profiling legislation. Police administrators will not fix the problem, if they cannot recognize there is a problem or have 

the tools to identify to what extent a problem is that exists. Many chiefs and police 

organizations believe the decision to collect stopdata should be that of the local chief 

and his or her community.

Question: What if it is a chief who answered the survey that racial profiling didn’t 

exist? We can probably guess whether he or she will collect data. How does a chief 

decide whether the local community wants data collection? Is it by majority vote, 

majority of the minority, majority of a select group? What does this process look 

like? This idea sounds great in theory, however, in practicality it will result in the 

minority voice being silenced by the majority will.

Even if a community (minority and non-minority) agrees data collection is not necessary, we must remember there are no cities with restricted access. I must have 

the ability to drive through any city in this country, not just those who recognize 

the problem. 

For our highways to be truly ‘‘freeways’’ we must ensure racial profiling ends in 

every city and by every officer in this country. It is the basic purpose of the federal 

government to protect and defend the constitution of the United States. This responsibility cannot and must not be relegated to local law enforcement or the will of local 

communities. 

49

Racial profiling legislation is needed to ensure the meaning or definition of racial 

profiling is standardized - it must mean the same; whether you are driving on the 

Maryland Interstate or the California highway. A police officer must understand the 

effect of bias-based policing to his or her community, whether in Oakland, California 

or Washington, DC. 

Racial profiling legislation is needed to ensure police agencies operate within the 

guidelines of the constitution, never sacrificing civil liberties for safe streets. We can 

and must do both. 

Racial profiling legislation is needed to hold law enforcement organizations and 

officers accountable. This is not federalism; this is your responsibility. 

As a law enforcement manager ‘‘I can not manage what I do not measure.’’ Data 

collection is not the sole answer or panacea. Data collection in most cases will not 

determine whether an agency is engaging in widespread racial profiling. 

Data collection, however, is necessary to identify levels of bias in police operations. Moreover, it is critical in determining the effectiveness of programs and policies. We must establish benchmarks to measure the effectiveness of our reform efforts. 

As a law enforcement manager, I can not establish an organizational tone or culture of accountability without sound policies and relentless enforcement at local and 

federal levels - of those policies. It took legislation to permit racial profiling and discrimination - it will take legislation to end it. 

In closing, NOBLE recommends the Attorney General form a National Task Force 

on Racial Profiling to ensure proper enforcement of the legislation. 

The task force would assist the Attorney General in identifying what data should 

be collected, establish credible benchmarks, develop comprehensive training programs and create mediation and facilitation programs for a ‘‘cities in crisis’’ with 

racial tension. Mediation services on the front-end prevent investigations on the 

back-end. 

It is truly an honor for me and NOBLE to provide our input. We are grateful that 

this committee’s action is consistent with the NOBLE motto: 

′′JUSTICE BY ACTION′′

I have provided each member of this committee a copy of the NOBLE Report on 

Racial Profiling and a copy of the Alliance joint resolution.

Chairman FEINGOLD. Thank you, Captain, for your testimony, for 

your support and the support of your organization. 

Next to testify will be Dr. Lorie Fridell. Dr. Fridell is the Director of Research at the Police Executive Research Forum, a consortium of progressive police organizations. Prior to joining PERF in 

1999, she was an associate professor of criminology and criminal 

justice at Florida State University. PERF is a highly respected organization. 

Dr. Fridell, we are pleased that you could come today. Please go 

ahead. 

STATEMENT OF LORIE FRIDELL, RESEARCH DIRECTOR, 

POLICE EXECUTIVE RESEARCH FORUM, WASHINGTON, D.C. 

Ms. FRIDELL. Thank you, Mr. Chairman, and thank you, Senator 

Sessions. I appreciate the opportunity to appear before you today. 

As you said, I am representing the Police Executive Research 

Forum, which is a non-partisan national membership organization 

of police executives who serve over half of our Nation’s population. 

A major aspect of PERF’s service to the profession is social science 

research and I am the Director of Research. 

We believe that the vast majority of police in this country are 

dedicated men and women who are committed to treating all citizens fairly and with dignity. Just 2 weeks ago, PERF released a 

160-page report to provide guidance to these men and women and 

the citizens they serve on how they can respond to racially biased 

policing and the perceptions of racially biased policing. 

50

This guidance is based on surveys returned by more than 1,000 

police executives, materials sent to us by more than 250 agencies, 

existing reports and literature, focus groups with citizens and police from around the Nation, input from subject matter experts, 

and input from an advisory board, including a representative from 

NOBLE, as well as representatives from minority advocacy groups 

and civil rights groups and academia. So much of what we gained 

during the course of that report has helped us to understand what 

Senate bill 989 would mean for both police and citizens. 

I am going to highlight several major points from my written testimony. First, I will discuss our support for the best practices 

grants and how that is, in fact, the appropriate role of the Federal 

Government to address this important problem. 

Second, I will share our concerns regarding the provision that allows the results of data collection to serve as prima facie evidence 

in court of racially biased policing on the part of agencies. My concerns relate to what appear to be overly high expectations regarding the ability of these data to identify racial profiling. 

Third, I will share our concerns about the provision that jeopardizes funding for communities in need by linking those funds to new 

eligibility requirements. 

First of all, Title III, Section 302, provides for the best practices 

development grants. These are going to support agencies in their 

efforts to respond to racially biased policing. The PERF report advocates that executives sit down with their citizens and discuss the 

problem and decide what are the appropriate remedies tailored for 

the jurisdiction. 

In our report, we provide over 50 recommendations for these police-citizen partnerships to implement. We strongly support Section 

302, which would provide communities with the resources to implement these, so long as it doesn’t drain other important current law 

enforcement funding. We are also pleased to see that many of the 

activities listed in that provision reflect the recommendations in 

the PERF report. Again, this provision does represent an appropriate role of the Federal Government. 

We are very concerned, however, with Title I, Section 102, regarding the enforcement of the racial profiling prohibition. Specifically, we are very concerned that this provision provides that department data that show law enforcement activities ‘‘have had a 

disparate impact on racial or ethnic minorities shall constitute 

prima facie evidence of a violation of this title.’’

We are concerned because we believe this indicates expectations 

for law enforcement data that exceeds their capabilities. Indeed, 

during the course of our 18-month project, we witnessed overly 

high expectations for what this law enforcement data can tell us. 

In fact, it appears that policymakers, citizens, and even executives 

came to think that if they cared at all about racially biased policing 

that they had to collect special data. Other important response 

areas were not given equal emphasis; these other areas include, for 

instance, academy and in-service training, restrictive policies on 

the use of race and ethnicity to make law enforcement decisions, 

recruitment of diverse personnel, first-line supervision, and outreach to minority communities. 

51

While data collection can, in fact, be one viable response by agencies to the problem of racially biased policing, policymakers need 

to understand, first of all, the limitations of those data—what they 

can and cannot tell us. And, second of all, they need to understand 

how to use those data responsibly in light of their limitations. 

First, with regard to the limitations of the data, social science is 

not capable of providing us with an answer for every question that 

we pose. Thus, while all of us would very much like to have data 

collection systems that can tell us what is going on in the heads 

of our officers every time they make a stop or initiate a search, we 

cannot do this. 

The problem is that while we can collect data and, with the help 

of some benchmarks show the disparity, we cannot to a reasonable 

degree of certainty explain that disparity. That is, while an agency 

can produce reasonably valid data to answer the question, ‘‘what 

percent of the people we stop for traffic violations are Hispanic,’’

the question we can’t answer well is, ‘‘what percentage proves racial profiling? ’’

Agencies are using benchmarks: census, driver’s license, UCR 

and observational data to try to figure out what these percentages 

should be. But all of these have great limitations because, in effect, 

what we are trying to do with this benchmarking and this data is 

prove a causal linkage between race and police behavior, when we 

cannot possibly account for all of the variables besides race that 

could have impacted on that behavior. These variables would include, but are certainly not limited to, amount of driving, driving 

violations, vehicle condition, and enforcement activity. 

Again, there is nothing wrong with data collection so long as the 

people collecting it understand what the data can and cannot do, 

and that the results are used responsibly. What does it mean to 

use them responsibly? Using them responsibly means realizing that 

these are not proof of wrongdoing on the part of either officers or 

agencies. 

In the legal system, we link the seriousness of our response to 

the level of proof or the confidence that we have in our evidence. 

For example, we would not arrest someone solely on the basis of 

hearsay evidence alone. Similarly, we shouldn’t bring an agency 

into court based on data collection efforts that show disparity 

alone. The consequence is too great vis-a-vis the confidence that we 

can have in this evidence. 

This bill would allow agencies to be pulled into court based on 

a low level of proof and then require the agency to prove a negative—prove that they are not engaging in racially biased policing, 

thus using resources for the legal defense that should be used to 

protect and serve our communities. 

Very briefly, Title III, Section 301, restricts eligibility for specified grant programs. We do not support Section 301 because it jeopardizes existing funds that provide important resources to communities in need. For instance, LLEBG funds are being spent to enhance domestic violence efforts, reduce gang crime, enhance security in and around schools, and provide recreational activities and 

job training for at-risk youth. The harm of this provision will be to 

the citizens of those high-risk neighborhoods. 

52

In closing, I appreciate the opportunity to speak with you. As indicated by our recently released report, PERF takes racially biased 

policing very seriously and we are working to help agencies respond effectively. We support the bill’s sponsors in wanting to address racially biased policing and hope that we can work with 

Members and staff on this and other important law enforcement 

issues. 

Thank you. 

[The prepared statement of Ms. Fridell follows:]

STATEMENT OF LORIE FRIDELL, PH.D., RESEARCH DIRECTOR, POLICE EXECUTIVE

RESEARCH FORUM, WASHINGTON, D.C. 

Mr. Chairman and Members of the Committee, I thank you for the opportunity 

to appear before you today. I am representing the Police Executive Research 

Forum (PERF), which is a nonpartisan, national membership organization of police 

executives who serve more than half the nation’s population. A major aspect of 

PERF’s service to the profession is the social science research that we conduct on 

various law enforcement topics. I am the director of research at PERF and have 

worked closely with our members and others engaged in addressing racial profiling. 

PERF’s members are dedicated to addressing racially biased policing in all of its 

forms and they join the vast majority of police officers in this country who are dedicated, principled men and women committed to treating all citizens fairly and with 

dignity as we work to prevent, identify and eradicate racially biased policing. 

PERF recently released a 160-page report on racially biased policing. (This report 

is available in its entirety on our website at www.policeforum.org.) It provides nearly 50 recommendations that are based on information culled from surveys returned 

by more than 1,000 law enforcement executives, materials from more than 250 police agencies, focus groups with citizens and police, a literature review, subject matter experts, national conference discussions, and advisory group input. The advisory 

group for this project was composed of a diverse group of law enforcement practitioners, community activists, civil rights leaders and academics. Much of the information we gained during this study has helped us better understand what S. 989 

would mean for police and citizens. 

SOME GENERAL PRINCIPLES

To put my remarks in context, I would like to mention a few principles that 

guide PERF’s work in this area. First, we know that racially biased policing must 

be treated as a human rights issue. It has always been unconstitutional and there 

are remedies, such as civil litigation under section 1983 and U.S. Civil Rights investigations by the Department of Justice, and these should not be forgotten. We know 

that racial profiling has had devastating effects on citizens. It is a problem that 

should be addressed by police working in concert with community leaders, civil 

rights activists and other stakeholders toward a climate of mutual trust and respect. 

Second, we know it is important to address the corrosive impact of both perceived 

and actual racial bias by police and that the concerns of both law enforcement and 

citizens go well beyond the standard, very narrow, definition of ‘‘racial profiling.’’ We 

use the term ‘‘racially biased policing’’ rather than ‘‘racial profiling’’ because racial 

profiling has frequently been defined so restrictively that it does not capture the 

concerns of both police practitioners and citizens. The most common definition of 

‘‘racial profiling’’ refers only to law enforcement activities (particularly vehicle stops) 

based solely on race. According to the PERF report, ‘‘racially biased policing’’ occurs 

when law enforcement inappropriately considers race or ethnicity in deciding with 

whom and how to intervene in an enforcement capacity. Compared with this definition, ‘‘racial profiling’’ targets a much narrower range of activity. These contrasting, 

but unspoken, definitions lead to confusion when assessing police or citizen perceptions of the problem and need to be clarified in any discussion about the range of 

activities of concern to police and the public. 

The PERF report suggests that executives conceive of ‘‘interventions’’ broadly and 

consider the following areas in addressing racially biased policing:

1. accountability and supervision; 

2. policies prohibiting biased policing; 

3. recruitment and hiring; 

4. education and training; 

53

1 ‘‘Racial Profiling: Limited Data Available on Motorist Stops.’’ Report submitted to the Hon. 

James E. Clyburn, Chairman, Congressional Black Caucus, March. 

5. minority community outreach; and 

6. data collection and analysis.

One of our concerns with S. 989 is its overemphasis on data collection as a remedy 

for this problem-reflecting the overly high expectations nationally for these efforts. 

We found during the course of our work that there is a widespread misunderstanding on the part of policy makers, agency executives and citizens of what data 

collection-that is, agencies’ collection of race/ethnicity and other data on engagements with citizens-can and cannot do. After characterizing the constraints associated with data collection, I will link those concerns to several specific provisions in 

the bill. 

THE LIMITATIONS OF DATA COLLECTION EFFORTS

In PERF’s report, we caution against high expectations regarding the extent to 

which data can produce valid answers to the serious and legitimate questions an 

agency seeks to answer. Data collection can be a very positive agency response that 

can reflect the police executive’s commitment to both the community and agency 

personnel that biased policing will not be tolerated. It can be used as a first step 

in internal assessments of particular enforcement tactics or individual officer performance when used responsibly. It can be problematic, however, if policy makers, 

including police executives, look to data collection efforts to provide a reliable and 

valid assessment of the nature and extent of racial profiling. 

Social science is not capable of providing valid answers to every question posed. 

Indeed, there are many chiefs who sincerely would like to gauge whether or not 

their departments engage in racially biased policing, but have come to recognize 

that social science methods are not fully able to produce the information they seek. 

Specifically, while agencies can have reasonable confidence in the data they collect 

from their officers regarding whom they stop, there are legitimate questions as to 

whether there are, at present, cost-effective methods for interpreting those data to 

reach valid, meaningful conclusions. An agency can produce reasonably valid data 

to answer the question: ‘‘What percent of the people we stop in this jurisdiction for 

traffic violations are Hispanics?’’ The question we can’t answer is ‘‘What percentage 

proves racial profiling?’’ That is, an agency might determine that 25 percent of its 

stops are of Hispanics but be unable (because of the limitations of social science) 

to draw any reliable conclusions regarding what this means. Some agencies might 

compare the percentage of Hispanics stopped to census data and yet the people who 

live in a particular area may be very different from who is traversing the roadways. 

A department would want to compare the demographics of those stopped with the 

demographics of those at risk of a stop, taking into consideration numerous factors, 

including, but not limited to, driving quantity, driving behavior, vehicle condition, 

and police presence. This information is not readily or easily available. 

The key point here is that, in the realm of ‘‘racial profiling,’’ some benchmarks 

can help us show disparity (number of people stopped as compared with representation in the general community population, for example). We don’t yet have the social 

science techniques that can help us to explain that disparity. That is, we cannot rule 

out all possible explanations for that disparity except race. 

In conducting data collection, we are asking social science to determine whether 

there is a causal main effect between citizen race/ethnicity and police behavior. To 

show this causal effect we must, among other things, rule out all other possible explanations for that disparity. To draw definitive conclusions regarding stop data 

that indicate disproportionate engagement of racial/ethnic minorities, we would 

need to be able to identify and disentangle the impact of race from legitimate factors 

(such as driving behavior, driving frequency, status of equipment, hot spot enforcement) that might reasonably explain individual and aggregate decisions to stop, 

search and otherwise engage people. Social science cannot do this well. As stated 

in a U.S. General Accounting Office report (2000), because of methodological challenges, ‘‘we cannot determine whether the rate at which African-Americans or other 

minorities are stopped is disproportionate to the rate at which they commit violations that put them at risk of being stopped’’ (p. 18).1

In an attempt to rule out alternative factors, agencies strive to develop comparison groups against which to evaluate their vehicle stop data. Specifically, agencies 

try to develop comparison groups that reflect the demographic makeup of groups at 

risk of being stopped by police in an unbiased world. We don’t have this alternative 

unbiased world for purposes of comparison and, instead, social science only offers 

54

agencies alternatives for ‘‘benchmarking,’’ which are wanting. (For instance, agencies are using census data, drivers’ license data, accident data and so forth to develop standards for comparison.) In effect, the process of data collection is an effort 

to collect ‘‘circumstantial’’ evidence to tell us what is going on inside the heads of 

police officers when they make decisions. The methods we have are simply inadequate for the task. 

PERF very much wants to increase the value of data collection efforts and, to that 

end, we are currently engaged in a federally funded project to develop guidance for 

police agencies in their analysis and interpretation of data. Our hope is to enhance 

the general understanding of the potential and constraints of these data and promote their responsible use. (We do not, however, advocate mandatory data collection.) 

Indeed, let me emphasize that data collection can be one viable response to the 

issue of racially biased policing so long as the policy makers, including chiefs, understand what the data can and cannot do. The key is to examine the objectives one 

wants to achieve and have a full understanding of whether or not data collection 

can achieve those objectives. It can be a good starting point for assessing overall 

performance and be part of a comprehensive partnership effort with citizens in addressing the problem. The downside of data collection is misusing the findings because of a lack of understanding of its limitations. This can cause harm to agencies, 

to individual officers and to communities. This leads me to my specific comments 

regarding the bill. 

PROHIBITIONS AGAINST RACIAL PROFILING AND ENFORCEMENT

Because of social science limitations, the PERF project team was disturbed during 

the course of the study to see policies that linked ‘‘racial profiling’’ results directly 

to officer discipline. This clearly demonstrated a misunderstanding of where these 

types of data might fall in terms of level of proof. It would be the equivalent of punishing someone based on hearsay evidence alone. The results of data collection efforts-whether at the individual or agency level-are not ‘‘proof’’ of misconduct. Thus, 

we were similarly disturbed that Title I, Section 102 provides that ‘‘[p]roof that the 

routine investigatory activities of law enforcement agents in a jurisdiction have had 

a disparate impact on racial or ethnic minorities shall constitute prima facie evidence of a violation of this title.’’ As noted above, a finding of ‘‘disparate impact’’

is meaningless without proper analysis and interpretation, yet S. 989 uses it to shift 

the burden to police to prove they are not engaged in racial profiling. Data collection 

that results in a finding of disparate impact does not necessarily indicate that police 

are racially biased in their enforcement and investigatory decisions. For instance, 

if a minority community having a problem with a youth gang composed of mostly 

minority members asks for police action, there may be a disparate impact when ‘‘hot 

spot’’ enforcement is used, depending on the comparison group used to determine 

disparate impact. 

There are two related issues. One is that, chiefs may well be able to explain to 

a sufficient level of proof that they are not engaging in racial profiling, but they 

would still need to defend their actions in court based on this limited data. Upon 

passage of this legislation, there could conceivably be large numbers of police agencies in the country called into court to explain why the percentage of ethnic minority 

people arrested (per their Uniform Crime Report data) exceeds their representation 

in the population. The second issue is that we will be asking agencies to ‘‘prove a 

negative’’ with social science tools that are quite limited. Agency information that 

shows disparate impact can reasonably prompt additional investigation by police, 

analysts and the community to consider the context and myriad factors that went 

into the law enforcement decisions made. This is what is happening nationwide. 

But, this type of information does not warrant consideration as prima facie evidence 

of racial profiling. 

The further harm of this provision is that it may have negative consequences for 

law enforcement’s legitimate crime control and prevention activity in neighborhoods 

with largely minority residents. Several PERF members-including Chief Edward 

Flynn across the Potomac River in Arlington County, Virginia-shared recently that 

they have met with leaders of predominantly minority communities who have 

agreed that additional officer deployment in their neighborhoods is necessary to address crime and disorder. The chiefs’ concern was that these deployments might increase allegations of racial profiling because appropriate benchmarks and safeguards against improper analysis and interpretation do not exist. They are concerned they will need to vest significant resources to explain their actions in court, 

under a cloud of alleged racial bias, even when their activities are legitimate. And, 

indeed, this provision in the bill appears to do just that. 

55

Shifting the burden to police agencies to prove they are not engaged in racial 

profiling will only ensure that police agencies who are called into court to justify 

legitimate law enforcement activities that resulted in disparate impact, but no racial 

profiling, will have their budgets drained to pay for legal defense. Exacerbating this 

burden on police is the provision that law enforcement agencies that cannot prove 

the ‘‘racial profiling negative’’ may be required to pay ‘‘reasonable attorneys’ fees as 

part of the costs, and may include expert fees as part of the attorney’s fee.’’ While 

prevailing plaintiffs may receive attorney’s fees, even where police agencies prevail, 

they seldom, if ever, recover the costs associated with defending a claim. 

At a time of stretched police agency budgets, it is the community who will suffer 

if public safety funds are diverted to pay for increased litigation against agencies 

based only on a finding of disparate impact. We would not want the bill to divert 

police focus or resources away from serving troubled communities. 

PERF’s report proposes that data collection should be considered by citizens and 

the police who serve them as one of many tools that can be used in a comprehensive 

approach to address racially biased policing, and its use should be determined by 

the priorities and resources of that community. There is an important place for data 

collection in the range of possible police-community responses: It just isn’t appropriate to presume that disparate impact derived from data collection sufficiently indicates racial profiling to justify the financial burdens and stigma that is placed on 

police agencies even if they are able to explain the results as unbiased policing. 

LOSS OF CRITICAL FUNDING FOR CRIME-RIDDEN COMMUNITIES

Another troubling aspect of S. 989 is that police funding under the COPS program, Local Law Enforcement Block Grant Program and Byrne grants could be lost 

for failure to comply with such vague mandates as ‘‘cease existing practices that encourage racial profiling.’’ Even if the proscribed activity is better defined, it seems 

contrary to the stated objective to take support away from citizens in violent neighborhoods under these federal grant programs because there is a police agency that 

is believed not to have ‘‘adequate policies and procedures designed to eliminate racial profiling’’ (emphasis added). 

The funds from these grant programs are being used across the country to do tremendous things for communities. For instance, Local Law Enforcement Block 

Grants (LLEBG) funds are being spent to enhance domestic violence efforts, reduce 

gang crime, enhance security in and around schools, provide recreational activities 

and job training for ‘‘at risk’’ youths, support juvenile drug courts to name just a 

few uses. It would be tremendously unfortunate if the ‘‘at risk’’ kids, domestic violence victims, juveniles with drug problems and students lost their programs. 

The objective should be to help all police agencies do the best possible job to address racially biased policing. If there are problems, we should work to solve them, 

not take away critical funding that will further impair police services to areas 

plagued by crime and disorder. It is important to remember that there are already 

in place powerful remedies for addressing ‘‘pattern and practice’’ as well as individual officer’s misconduct that do not include taking funds that ultimately benefit 

citizens in areas overrun by criminal activity. 

We want to be clear on this point: There is no legitimate purpose served by endangering critical public safety funds by adding requirements that grantees address 

the specific racial profiling mandates outlined by S. 989. Even those who argue that 

there are reasons to include such mandates must realize the limitations of the requirements that we discuss below. 

REQUIREMENTS FOR GRANT FUNDING

POLICIES

S. 989 requires that agencies must have a policy that states a prohibition of racial 

profiling. We agree that agencies should have a policy, but do not think this should 

be linked to federal funding. PERF has developed a recommended policy that is already being considered seriously by police agencies across the nation despite the fact 

that it was released just two weeks ago. It has already been adopted by the National 

Oceanic and Atmospheric Administration’s (NOAA’s) Office for Law Enforcement 

with some modifications. 

While our policy is similar in substance to that contained in S. 989, we believe 

our policy is clearer and, arguably, more encompassing (covering all law enforcement decisions). (It is not clear, for instance, whether the policy set forth in S. 989 

encompasses police decisions to arrest or use deadly force.) The PERF Model Policy 

has been reviewed by law enforcement lawyers and constitutional scholars and 

builds upon both the 4th and 14th Amendments of the Constitution. In the 4th 

56

2See, Walker S. (1995). Citizen Review Resource Manual. Washington, D.C.; Police Executive 

Research Forum. 

Amendment realm, our policy makes it very clear that race can never be used as 

the sole factor to establish either reasonable suspicion or probable cause. 

DATA COLLECTION

The second requirement for receiving covered grants is ‘‘the collection of data on 

routine investigatory activities. . . to determine if law enforcement agents are engaged in racial profiling.’’ We do not support mandatory data collection because social science does not currently provide us with the benchmarks and other tools necessary to determine if law enforcement agencies are engaged in racial profiling. This 

position has also been taken by the Major Cities Chiefs for the same reasons. 

And, as mentioned earlier, we think the decision whether or not to collect data 

is best made by citizens and the police who serve them. We think it is reasonable 

for these partners to decide that the money to be expended to address this critical 

issue might be more reasonably and effectively spent on other activities, such as 

academy and in-service training programs designed to reduce racially biased behaviors, adoption of the PERF policy with associated training, enhanced supervision 

techniques, concerted minority hiring efforts, purchase of in-car videos, and enhanced outreach to minority communities. 

The data collection requirement in S. 989 includes all ‘‘routine investigatory activities,’’ which include traffic stops, pedestrian stops, frisks and other types of body 

searches, and consensual or nonconsensual searches. In the PERF report, we discuss 

balancing the need for information on high-discretion/low visibility stops against 

considerations of response times, officer safety, community priorities, resources, etc. 

Another consideration is that the benchmarking challenges increase exponentially 

with every additional law enforcement activity targeted (e.g., adding pedestrian 

stops to traffic stops). Reflecting this balance, we propose that agencies choosing to 

collect data, or mandated by state law, target vehicle stops (that is, traffic and investigatory stops of motorists). Further, we acknowledge that some agencies may 

choose to institute data collection in stages-adding additional categories of activities 

as the system is developed. The agencies collecting vehicle stop data or adding activities incrementally to produce a sound system would be ineligible for covered program grant funds. 

CITIZEN COMPLAINT AND OFFICER DISCIPLINARY PROCEDURES

S. 989 also requires that grant applicants have adequate citizen complaint and 

officer disciplinary procedures to address racial profiling. The PERF report supports 

procedures that will increase the transparency and integrity of the citizen complaint 

process. We have recommended, ‘‘the public complaint management system include 

a separate category to permit clear and accurate monitoring of complaints of biased 

policing, with the capacity to identify patterns and practices inimical to equal treatment of citizens.’’ We recommend audits of the complaint system with spot checks 

to evaluate effectiveness. We have also recommended other means for ensuring that 

complainants are not intimidated, discouraged or coerced in any way and understand the process, among others. With that said, these recommendations should 

never be a sanctioned requirement for federal grants listed under covered programs 

in the bill. 

As to oversight requirements for grantees, there is no single model of police oversight that will work in every jurisdiction.2 The term ‘‘independent’’ used to describe 

the required complaint procedures is not defined and will lead to myriad interpretations. The independent complaint procedures required by the bill may exclude review boards that effectively use both police and citizen input, if police involvement 

means the process is no longer independent. The federal government should not dictate to state and local authorities what type of review board they should have, so 

long as the process is effective, efficient and fair. In fact, the reason that PERF has 

opposed the federal Police Officer Bill of Rights legislation called the State and 

Local Law Enforcement Discipline, Accountability and Due Process Act of 2001 

(H.R. 1626 and S. 840) is precisely because those federal mandates would undermine the state and local controls and investigatory processes that effectively hold 

officers accountable for misconduct. The oversight provision is an inappropriate requisite for funding. 

57

ATTORNEY GENERAL’S POLICIES

It is unclear why there is a need for an additional policy requirement that law 

enforcement agencies must meet ‘‘such other policies or procedures that the Attorney General deems necessary to eliminate racial profiling’’ to retain and gain federal 

grant funding. We are unaware of why there would be a need to legislate such authority. 

SUPPORT FOR A BEST PRACTICES GRANT PROGRAM

PERF agrees that an appropriate federal role in addressing racially biased 

policing is providing funds to enhance or create local police efforts to address racially biased policing. 

It is our understanding from Hill staff that the Section 302 Best Practices Grant 

Program does not require compliance with the mandates set out in section 301. If 

this is the case, PERF would support such a grant program and is pleased that the 

list of supported activities reflects some of the many suggestions in the PERF report 

about effective responses to racially biased policing. (We should note, however, that 

some PERF members voiced concern that the grant program appropriations would 

be made from existing police funding programs such as COPS, Byrne and Local Law 

Enforcement Block Grants. PERF would not support draining existing law enforcement funds to support the new grant program.) 

The grant program is consistent with PERF’s objectives to see more work done 

in training and education, for example. Our report includes recommendations for 

topics and methods of delivery for both training and education. Police agencies 

should consider integrating education and training related to racial bias in a wide 

range of curricula, although a single course of instruction may suit immediate 

needs. The funds for training outlined in the bill could also be used to train officers 

in policies-such as the model developed by PERF-that clearly and tightly restrict officers’ use of race or ethnicity to make law enforcement decisions. Expansive reforms 

to training and education would benefit from federal funding support. 

PERF believes that support for data collection technology will aid those agencies 

that choose to collect data or are mandated by state law to do so, but believes that 

the use of those funds as specified in the bill be expanded further to help underwrite 

costs associated with changing forms, increased personnel time and other associated 

budget items. 

Many PERF members have also struggled with finding funding for in-car cameras 

and portable computer systems and would welcome grants to support these efforts. 

The best practices grants would include support for early warning systems 

tailored to the needs of each jurisdiction, which many PERF members have considered adopting in identifying ‘‘bad apples’’ as well as institutional policies and/or 

procedures that may have the unintended consequence of contributing to racially biased policing. 

In terms of accountability and supervision, PERF’s report focuses on the 

need for an assessment of the organizational culture; quality assurance 

methods for all operations; an integrated approach for encouraging police awareness and appreciation of racial/ethnic diversity and cultural differences; and regular 

reviews of the complaint reception and management/monitoring processes. Funding 

in these areas would be an important investment in these critical processes. 

According to the PERF report, supervisors should look for evidence of improper 

practices and patterns and should be responsible for ensuring that citizen complaints of biased policing are given a formal and respectful hearing, and that complaints are documented in accordance with agency policy. The ranking police representative should ensure that complainants are not subjected to any form of discouragement, intimidation or coercion in filing their complaints at the police station 

or in bringing their complaints to the attention of any officer. They must also provide the complainant with information on how the department deals with complaints, and with the name of the office responsible for handling them. Many of 

these recommended measures would benefit from financial commitment to citizen 

complaint systems and community education efforts that many agencies will struggle to find in current budgets. PERF believes additional allowable uses for grant 

funds might support efforts to increase minority representation on our police forces 

or support trust-building partnerships between agencies and their minority communities. Proactive efforts to recruit and keep a diverse police force must be realized. 

PERF also recommends periodic audits of selection processes to ensure that qualifications and standards are valid and fair to all applicants and that neither the sequencing of the testing stages nor the length of the process hinders minority hiring. 

Once selected, police executives should determine whether minority recruits are disproportionately dismissed from the agency during recruit training, field training and 

58

probationary periods, and if so, determine why and seek ways to reduce that disparate impact. 

Finally, there are many innovative minority outreach and partnership efforts 

being conducted across the nation (and which are described in the PERF report) 

that can be replicated and tailored to other jurisdictions, which would also benefit 

from funding support. 

SUMMARY

In closing, we can appreciate that the sponsors of S. 989 want to eliminate racially biased policing. PERF members join them in that goal. We support the provisions in the bill that would provide federal grants to support training, education, 

data collection for those who choose it or are mandated by state law, new technologies such as in-car cameras, and others. We should not, however, be holding 

back federal grants that benefit citizens in crime-ridden communities if police are 

unable to meet standards or requirements related to racially biased policing, when 

other enforcement measures exist. 

We hope that we can continue to work with staff and Members on these and other 

law enforcement issues and that we will find constructive grant programs and other 

measures that will help the vast majority of police professionals in this country who 

are eager to prevent and address racially biased policing. 

Thank you.

Chairman FEINGOLD. Thank you, Dr. Fridell. Thank you for your 

testimony and for the kind words about aspects of the bill. This 

gives me an opportunity to say again what I have said many times, 

including working with law enforcement in Wisconsin, that we are 

very eager to work with you on some of the issues you have mentioned. We may be able to come to agreement on some, others we 

may not, but that was a very specific analysis of some issues that 

we will be seeking to address. 

Finally, our last witness will be Professor David Harris. Professor Harris currently teaches at the University of Toledo College 

of Law. I can tell you he is one of the most dedicated people in the 

country on this issue. He is a leading scholar and author of various 

articles on the subject of racial profiling. 

Professor, it is a pleasure to welcome you again to this Committee and you may proceed. 

STATEMENT OF DAVID A. HARRIS, BALK PROFESSOR OF LAW 

AND VALUES, UNIVERSITY OF TOLEDO COLLEGE OF LAW, 

TOLEDO, OHIO 

Mr. HARRIS. Thank you very much, Chairman Feingold, Senator 

Sessions, members of the Committee. I appreciate the invitation. 

Thank you for having me here today and giving me the opportunity 

to speak on this problem. 

I want to start by saying that there is no reason that we should 

think that there is a choice to be made between effective crimefighting and backing off on racial profiling. There is no such dilemma; it is a false dilemma. 

We are sometimes told that there are only two ways to enforce 

the law, the aggressive way which takes race into account, and a 

softer way that will be ineffective but respectful. Respectfully, I reject that dichotomy, and I think every member of the Committee 

should also. 

In this country, we can have, and we must have, law enforcement that is both effective and respectful of the rights of its citizens, and especially their right to proceed on the streets or on the 

59

sidewalks, left alone, if that is their wish. We must have that and, 

in fact, we do have that. 

I agree with Chief Greenberg that there are cities in this country 

where the example of Commissioner Kelly is being followed in 

many different and very creative ways. Police departments in these 

cities have found that they can reduce crime, and keep it down in 

partnership with their communities. They are working with their 

communities, not against them, not treating members of those communities as potential suspects but as partners. That is the way 

that we will get around this problem. That is the way we will keep 

crime down. 

Any successful partnership requires at its core that there be 

trust. The word has already been used this morning and I want to 

use it again, because the trust of the public is tremendously important, indispensable to any policing effort. Without trust, law enforcement cannot hope to perform its core mission of serving people 

and protecting the Constitution. Police officers need the public’s 

trust to find out who the bad guys are and they need members of 

the public to trust them when they serve as jury and any police officers testify. If police don’t have the benefit of the doubt in the 

minds of the public, we have a serious problem. That is where the 

rubber meets the road on this problem. 

When there is a widespread belief in our country, that racial 

profiling is a common practice, trust is broken down and becomes 

corroded. And that is something that none of us in this room or 

anywhere else in this country, and certainly none of us who wear 

the police officer’s uniform can afford. It is simply a cost we should 

not pay and, in fact, we don’t have to pay because we can, as I said, 

have both effective and respectful enforcement. 

Let me just make a couple of very brief points because much has 

already been said today. It is clear that this is a national problem. 

There is data from a whole variety of contexts—traffic stops in 

Maryland and New Jersey, a stop-and-frisk study in New York 

City, the Customs Service before Commissioner Kelly implemented 

his reforms, and many others. 

What is really striking about this data is that it is consistent 

across the board. There was only one factor in all of these data that 

predicted who would be stopped at higher rates, and that was either race or ethnic appearance. At the same time, the other shocking thing in this data, and this lies at the core of my book, is that 

as other witnesses have said, this is not a law enforcement practice 

that works. It is inefficient. It does not get the bad guys. 

In fact, we get lower rates of return in terms of arrests, seizures 

of contraband, and so forth, when we focus on race than when we 

do a good job and just focus on behavior because race is descriptive 

and it is a good thing when it is used descriptively of a particular 

suspect. It is not good when it is used predictively, and that is 

where we get into trouble. 

The Federal role in this particular piece of legislation, Mr. Chairman, I think is very, very important. For years, the Federal Government has had the lead role in guaranteeing the Federal civil 

rights of all citizens, whether we are talking about voting rights, 

whether we are talking about the right to go to a desegregated 

school. This is of a piece with that. 

60

More than that, though, the Federal Government also had a 

hand in creating this problem through a Drug Enforcement Administration program called Operation Pipeline which taught profiling 

to agencies all over the country in a conscious effort to spread 

profiling as law enforcement gospel. Though the DEA says race 

was not a part of that effort, it has come to be used that way. It 

was implicit in some of the training materials that I have seen, and 

for that reason alone the Federal Government has a moral obligation to step up on this issue. 

I would also like to just take a minute to emphasize that data 

collection itself is not an end-all and a be-all. It is, as Senator 

Hatch quoted from earlier testimony, an important step, but it is 

clearly not the only step, and this bill takes us into the phase of 

crafting solutions. 

But as Captain Davis said, if I have no data, how can I manage? 

If I have no data, how can I have accountability? Accountability is 

what this issue really comes down to in so many ways. Without 

data, we don’t know how to hold our agencies accountable and our 

officers accountable. For that reason alone, this bill is worth considering in the most serious possible way. 

Last, it is important to emphasize a point made by Senator Schumer. This is sometimes viewed as a black problem or an AfricanAmerican problem. Surely, it is that, but Latinos, operate under 

what he called the double whammy of being criminal suspects and 

suspected illegal immigrants. And this is happening not just in the 

border Southwest where we have heard about the INS and the Border Patrol, and so forth, but also in a region of the country like 

mine, northwest Ohio. We are closer to Canada than Mexico, but 

have had State police stopping people and confiscating their green 

cards, and not just any people who might be immigrants, but only 

those who had an Hispanic appearance. 

In closing, let me just say, Mr. Chairman, I appreciate very much 

the chance to speak to the Subcommittee. I appreciate your leadership on this issue. S. 989 is a huge step forward and I am hopeful 

that the Committee will give it every consideration. 

Thank you for the opportunity. 

[The prepared statement of Mr. Harris follows:]

STATEMENT OF DAVID A. HARRIS, BALK PROFESSOR OF LAW AND VALUES, UNIVERSITY

OF TOLEDO COLLEGE OF LAW, TOLEDO, OHIO

Chairman Feingold, Ranking Senator Thurmond, and distinguished ladies and 

gentlemen, thank you for holding this hearing. I am David Harris, Balk Professor 

of Law and Values at the University of Toledo College of Law in Toledo, Ohio. I 

have been researching and writing in the field of racial profiling for more than six 

years. My book, ‘‘Profiles In Injustice: Why Racial Profiling Cannot Work,’’ will be 

published in January of 2002 by The New Press in New York. I thank you for inviting me to address you today. 

Few topics have become more important to the general public over the last few 

years than racial profiling: the use of race or ethnic appearance, along with other 

factors, to single out individuals for police investigation. When we think of racial 

profiling, we think of traffic stops. But this type of bias can rear its head in many 

different types of routine police encounters, such as stops and frisks on city streets. 

Polling by the Gallup organization shows that a majority of all Americans—not just 

African Americans, Latinos, or other minorities feel that racial profiling is a widespread phenomenon, and that it must be rooted out. The evidence that we have from 

the first statistical studies—from New Jersey, Maryland, New York, and other 

places—confirms this belief. 

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Before going further, it is important to understand what this problem is really 

about. For many, the term ‘‘racial profiling’’ translates into police racism and bigotry, pure and simple. Police officers themselves often feel accused of racism, individually and collectively, whenever the topic of racial profiling is raised. I believe 

that this is an oversimplified and in many ways inaccurate way to view this complex 

social problem. While there surely are bigots among police officers, this is true of 

people in every walk of life. The problem is not the bigotry of a few wayward individuals, but a set of biased institutional practices. Most often, this bias is unintentional; police officers by and large are good people who want to do a good job serving 

the public. Those who use race or ethnic appearance as a possible indicator of criminality almost always do so with the best of intentions: they feel it is the right way 

to fight crime. But whether we are aware of these biases or not and whatever the 

intention behind them, racial profiling is doing great harm to policing and the entire 

criminal justice system. It is high time we examined these practices carefully. And 

when we do, we find that using racial or ethnic appearance, except those describing 

particular people, is not good policing at all. 

A NATIONAL PROBLEM

African Americans, Latinos, and others have long complained about being singled 

out by police on the basis of racial or ethnic appearance; the problem is not new. 

But for years there was no solid proof that this was a real and widespread phenomenon. As recently as 1994, there were no statistics from anywhere in the country that would have helped to clarify the scope and extent of the problem. 

This began to change in the middle and late 1990s. Court cases in New Jersey, 

Maryland, and elsewhere, and investigations by the press in other states, began to 

produce reliable statistics for the first time. They came from different places, involved different police agencies, and different law enforcement contexts. Despite 

these differences, the statistics were remarkably consistent: African Americans, 

Latinos, and other minorities were, in fact, stopped and investigated by police in 

numbers far out of proportion to their presence on the roadways, on city sidewalks, 

and in airports. Driving behavior didn’t explain this; presence in high-crime neighborhoods didn’t explain this; only race explained it. And, as I argue in my book, the 

data demonstrate that racial profiling does not catch criminals at any better rate 

than other methods; in fact, it does a worse job. Thus it is ineffective as well as 

immoral and personally damaging. 

Given the wide variety of localities these numbers come from—New Jersey, Maryland, Florida, New York City, Colorado, California, and others—it is clear that this 

was a national problem. This does not mean, of course, that profiling happens everywhere, in every police department. But the data reveal a pattern spread among so 

many different contexts that the issue has become a national concern. 

THE FEDERAL ROLE

At this point, the question of racial profiling has become part of the public debate 

in most states and many cities around the country. Thirteen states have passed 

some kind of legislation requiring some form of data collection on traffic stops or 

other routine police encounters by some or all of the police agencies under their jurisdictions. In addition, several hundred police agencies that are not obligated to do 

so have begun collecting data on traffic stops. The data collected vary, but almost 

always include the race of the driver, the reason for the stop, and the outcome of 

the stop. Thus we might ask whether federal legislation such as S. 989, the End 

Racial Profiling Act of 2001, is necessary. 

I believe that the answer to this question is a strong and emphatic yes. We should 

encourage state and local authorities to take action on racial profiling; S. 989 would 

do exactly that, without discouraging or supplanting state and local efforts. In addition, there are things the federal government can do that are unique to its role in 

our country that will move police departments in the right direction. Moreover, we 

must keep in mind that, despite laws in thirteen states and the several hundred 

local efforts already under way, the great majority of the thirteen thousand police 

departments in our country have not changed their policies or practices and are not 

collecting data. Thus it remains important for the federal government to act, and 

to act now. 

First, our federal government has an historic role as the guarantor of federal civil 

rights. Whether we think of the right to attend an integrated school, to vote, or to 

use public facilities without discrimination, it has been the federal government that 

has often stepped in as the ultimate guardian of what our Constitution secures for 

all citizens. This has involved all three branches of the federal government at different times and in different contexts, often working together. Racial profiling repVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
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resents the same kind of challenge: where this practice goes on, it is a direct violation of the Fourteenth Amendment’s guarantee of the equal protection of the laws 

that all Americans enjoy. Thus, far from being an intrusion on the role of the states, 

laws like the End Racial Profiling Act allow the federal government to fulfill one 

of its most important functions: assuring that all citizens everywhere are treated 

equally by the states and their agents, in accordance with their constitutionally 

guaranteed civil rights. The Supreme Court of the United States has said, without 

ambiguity or equivocation, that racially biased law enforcement violates the equal 

protection of the law promised to all Americans under the Fourteenth Amendment. 

Whren v. U.S., 517 U.S. 806 (1996) (Scalia, J., writing for the majority). 

Federal action is also appropriate on racial profiling for a second reason: the U.S. 

government had a key role in causing the problem. In the late 1980s and early 

1990s, the Drug Enforcement Administration launched Operation Pipeline. This was 

a consciously adopted federal program—not an accident or a ‘‘rogue policy,’’ but a 

carefully devised stategy. The idea was to take the ‘‘drug courier profile’’ that the 

DEA used in airports and bring it to the roads and highways. The DEA did this 

by training many thousands of state and local police officers in profiling techniques, 

who in turn returned to their own departments and trained their fellow officers as 

well as officers from other departments. The upshot is that by the early 1990s, uncounted numbers of police agencies all over the country were conducting profiling 

operations—many of them using race and ethnicity. The DEA still denies that its 

profile training utilized race or ethnic appearance. Nevertheless, implicit suggestions about which racial or ethnic groups were involved in drug trafficking is evident in training materials, and explicit information suggesting racial patterns in 

drug trafficking were featured prominently in drug intelligence reports supplied by 

federal agencies to state and local departments across the country. (Incredibly, at 

the end of 2000, a DEA spokesperson conceded that DEA still used race and ethnic 

appearance to decide which drivers to search and investigate, but only after the 

drivers had been legitimately stopped for other reasons.) 

Given this federal activity, racial profiling was all but inevitable at every level 

of enforcement around the country; its appearance and the outcry against it can 

hardly surprise us at all. Thus it seems only fair that the federal government take 

the lead role in helping state and local law enforcement come to grips with the problem. 

Third, S. 989 uses a balanced approach to the problem that only the federal government can take. The bill uses both the carrot—federal funding for best police 

practices that can get us beyond profiling and other forms of biased policing—and 

the stick: a direct prohibition on racial profiling, and the threat of legal action and 

the loss of federal funds for departments that continue these practices. Combined 

with collection of data on traffic and pedestrian stops, S. 989 can help police agencies across the nation to make direct and straightforward efforts to address this 

issue, and move those departments toward the best of what law enforcement can 

be in the twenty-first century. Our nation can accept no less. 

DATA COLLECTION AS AN ACCOUNTABILITY TOOL

Probably no other aspect of the debate on racial profiling has stirred more controversy than mandates to collect race and other data on drivers or pedestrians 

stopped by the police. Critics say that data collection is an impossible and expensive 

task that, in the end, will tell us little. And in point of fact, it is true that data 

collection has at times been oversold as THE SOLUTION to the problem of racial 

problem, a panacea of sorts, and has sometimes been undertaken that way—data 

collection for the sake of data collection. 

But these critics are both shortsighted and selective in their views of the facts. 

Yes, collection of traffic or pedestrian stop data is a complex task, and analysis must 

be sophisticated and must include the appropriate contextual information in order 

to be useful. And statistical protocols used in these studies must include appropriate 

benchmarks for comparisons to police activity—not residential census numbers, but 

accurate counts of the actual racial and ethnic populations on the roads being studied. Contrary to what the critics imply, this work is already being done, now, in 

many places around the country—not only on highways, but on mixed used, urban/

suburban street environments. And collecting this data and analyzing it have proven to be less time consuming and expensive than almost anyone anticipated. It is 

simply untrue to say that good statistical work on this problem is too difficult or 

not worthwhile; these conclusions represent biased judgments made on less than 

complete information. Surely, data collection will not solve the problem itself. But 

it is a first step—a necessary first step—in our efforts to address this problem. Data 

brings us out of the realm of anecdote, and into the world of hard facts. And everyVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
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one concerned with racial profiling, from whatever perspective, has much to gain 

from basing the debate on facts. 

But there is another, perhaps even more important principle at stake in the debate over data collection: accountability. Accountability is a bedrock democratic 

principle; institutions of all kinds must be accountable to the people and their representatives. These institutions includes the armed services, federal agencies, local 

school boards—and, of course, police departments. Police agencies often have a paramilitary structure, and the jobs they undertake are often difficult and dangerous. 

Nevertheless, police departments are—they must be—accountable to those they 

serve, especially given the great powers officers have over citizens’ lives and liberty. 

Data collection is essential for accountability, because accountability requires facts. 

Holding a public agency or institution accountable requires that both its own managers and the public have the solid information necessary to understand what personnel are doing. Good public policy choices must be based on facts. Strong feelings 

aren’t enough; statements that the public must ‘‘trust us’’ by those inside law enforcement institutions aren’t enough. Only facts will do. Without data collection, police agencies are left naked in public struggles that challenge their practices; they 

simply don’t have the information they need to make credible responses. For that 

reason alone, data collection is an absolute necessity. 

IT’S NOT JUST ‘‘DRIVING WHILE BLACK’’

In the early public discussions of racial profiling, this set of practices was often 

portrayed as a ‘‘black issue.’’ This stemmed from the fact that those who first raised 

these concerns were African Americans, and from the pithy label they sometimes 

gave the experience: ‘‘driving while black,’’ a bitter twist on the legitimate driving 

offense of driving while intoxicated. But it is important to understand that racial 

profiling does not only hurt African Americans. It also has an impact on many other 

racial and ethnic groups—Latinos, Asians, and Native Americans, for example, depending on the area of the country. 

Latinos, in particular, suffer the effects of racial profiling in profound ways. As 

I discuss in my forthcoming book, Latinos labor under a double burden. First, they 

are stigmatized as likely crime risks, just as African Americans are. Second, they 

are looked upon as suspected illegal immigrants. This is especially true in the border states of the American Southwest, but it has become common elsewhere as well. 

For example, in Northwest Ohio, where I live—an area closer to Canada than to 

Mexico and the rest of Latin America—a federal court had to enter an injunction 

to stop state troopers from stopping Latino drivers to question them about their immigration status and routinely seizing their green cards. The Latino drivers were 

given no explanation and no information on how they might go about getting their 

cards back, despite the fact that it is a federal crime to be without one. In areas 

nearer to the Mexican border, American citizens of Mexican descent are routinely 

stopped, questioned, and made to justify their presence in the country by agents of 

the Immigration and Naturalization Service, the Border Patrol, and other federal 

agencies. Every segment of the Latino population has been swept into this net, from 

laborers to professionals of every stripe—even lawmakers and judges. 

This explains why the issue of racial profiling has become an issue of deep concern in the Latino community. Latinos know that as hard as they work, as much 

as they achieve, they can, at any moment, be stopped and questioned by the authorities—their very right to be in this country attacked. They feel, in short, guilty 

until they prove themselves innocent. And with Latino populations in the United 

States burgeoning in virtually every corner of the nation and in every large American city, racial profiling promises to affect more and more innocent, hard working 

Latinos every year. 

CONCLUSION

I respectfully urge this body to give S. 989 favorable consideration, and I look forward to answering any question that any of the members may have.

Chairman FEINGOLD. Thank you, Professor, for your excellent 

testimony and your leadership on this. I want to thank everybody 

for doing very well in terms of keeping remarks concise, and I appreciate that so that we do have a chance to ask questions. 

In a moment, we will start the 5-minute question period, but 

first I want to acknowledge the presence and participation of Senator Jeff Sessions, of Alabama. 

64

I would at this point like to ask unanimous consent that the following statements in support of the bill be placed in the record 

from the Leadership Council on Civil Rights, the National Council 

of La Raza, the Hispanic American Police Command Officers Association, the American Civil Liberties Union, and the Mexican 

American Legal Defense and Educational Fund. 

Senator SESSIONS. Mr. Chairman? 

Chairman FEINGOLD. Senator Sessions? 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. If I could just thank you for your leadership 

on this issue, I know you held hearings last year or the year before. 

You discussed it significantly. It was raised during the Ashcroft 

nomination, who participated with you on the Subcommittee. He 

made some commitments for leadership. 

The President even talked about it in the State of the Union 

message. It is an issue that is getting heightened attention, and 

that in itself, I am confident, has improved some of the things that 

have happened just in the last 2 years as it becomes an issue more 

discussed. So I salute you for taking the lead on this. 

Chairman FEINGOLD. I thank you for your participation and look 

forward to working with you on the Committee as the legislation 

moves forward. 

I will begin a first 5-minute round, and let me just make a quick 

comment with regard to Chief Greenberg. I know you have strong 

feelings on this topic and I respect them and appreciate your being 

here, but I do want to make one statement for the record with regard to your testimony. 

You came somewhat close to suggesting that this racial profiling 

legislation is being used by its sponsors to conceal their true desire, 

which I believe you suggested is to legalize drugs or weaken enforcement of this country’s drug laws. I can assure you that this 

Senator has no such hidden agenda. I have seen the devastation 

caused by drug abuse in our communities. I support enforcement 

of our Nation’s drug laws. 

But I have also seen the devastation caused by racial profiling. 

I believe that effective law enforcement can exist side by side with 

bias-free law enforcement, as Professor Harris very eloquently suggested. In fact, I think it already does in many brave and honorable public servants, but I don’t think you do the cause of law-abiding and color-blind officers a real service by claiming that those of 

us who see a problem in this country with racial profiling are motivated by a desire to undermine enforcement of the drugs laws. 

There is simply no way that that is what I am about, and I don’t 

believe anybody else who is involved in this effort is about that, but 

I do appreciate your being here. 

Now, I would like to ask Mr. Young a question. I appreciate all 

the work that went into your testimony, and you raised some provocative points that I would like to explore. 

I did want to comment on one theme of your statement that I 

find mistaken and somewhat unfortunate, and also unnecessary to 

most of your critique of the bill, and that is what you say about 

65

what the premise of the bill is that somehow it is about the notion 

that law enforcement officers are racist. 

You say, for example, that this bill ‘‘presupposes that a man or 

woman in a police officer’s uniform is inclined to be racially biased.’’ I reject that assertion, both about police officers and about 

the bill. It is just not true. The vast majority of law enforcement 

officers are not racially biased and carry out their duties professionally. But we have a problem in this country with racial 

profiling, or as Dr. Fridell would prefer, racially biased policing. 

You say yourself that the investigation of a citizen solely based 

on race is wrong, but happens and it has to stop. That is what this 

bill is about. In fact, you say on page 2 of your testimony that this 

bill may mean that no minority will be stopped, searched or questioned, no matter how suspicious the activity, without a specific 

eyewitness account. Again, I have to disagree. 

Of course, if somebody runs a red light, he or she should be 

stopped, regardless of race. Of course, if someone is driving a car 

in a reckless manner, he or she should be stopped. All this bill says 

is that the driver’s race should not be a factor in the decision 

whether to stop the car. I have a hard time really understanding 

what is objectionable about that or how that prohibition assumes 

that police officers are racist. 

I would give you a chance to respond. 

Mr. YOUNG. Well, I don’t know that the bill is specifically limited 

to traffic stops, and when you eliminate the use of race to any degree, there are times when—I mean, how do you transmit a broadcast without using the race of a person who might be a suspect? 

We are certainly not supporting the idea that race alone would 

be a cause of action for any police action, but the bill prohibits the 

use of race to any degree, and that is where we have a problem 

with it. It eliminates it as one of many factors that we might use. 

Chairman FEINGOLD. Let me just guarantee you that that is not 

the case. The bill does not say that. Race can be used, for example, 

or other description in looking for a particular suspect. If there is 

any language in there, sir, that leads you to that conclusion, I am 

happy to take a look at it as we go forward with the legislation. 

That is not the purpose. 

In fact, you are correct. The bill is not limited only to traffic 

stops. It also does relate to pedestrian situations and others. But, 

again, it does not prohibit including in the specific description of 

somebody you are looking for the race or background of a person. 

That is not the intent. I also don’t think that is the language. 

My next question is for Mr. Kelly and Captain Davis on the question of data collection. Please comment on the concern that has 

been raised that data collection interferes with an officer’s work 

and can lead to low morale and poor policing. Do you agree and 

what has been your experience? 

Let’s start with Mr. Kelly on that and then Captain Davis. 

Mr. KELLY. I think in the Customs Service it was something that 

was not done consistently, and the number of people who were 

stopped and questioned was relatively small during any inspector’s 

tour. So I don’t think it is particularly burdensome as far as recording this information. 

66

I can also tell you that there is emerging technology that allows 

information to be taken in hand-held devices very quickly, and 

there are several law enforcement organizations throughout the 

country that are, in fact, using these devices. There was a hearing 

2 weeks ago that was mentioned about the use of technology in 

helping to prevent racial profiling. There were several vendors 

there who have this technology. 

So I think in terms of being a burden, increasing workload, that 

is a minimal problem because of the technology and also because 

of the volume work. I don’t see it at all as being a moral issue. I 

can tell you in the Customs Service that the reason it was successful was because of the inspectors, the people who man our borders 

24 hours a day. They got the message. 

I think they were not sufficiently served by management. They 

weren’t given adequate training, they weren’t sensitized to the 

problem, and they responded magnificently, in my view, when, in 

fact, they became aware of the problem. 

So I would say that it has, in my view, bolstered their morale 

because they are seen as acting in a more professional manner. So 

I would disagree with the assertion that it impacts adversely on 

morale and that it is somehow an administrative burden for individual officers. 

Chairman FEINGOLD. Thank you very much. 

Captain Davis? 

Mr. DAVIS. Yes, sir. I would agree with Commissioner Kelly that 

data collection does not cause low morale. A lack of leadership 

causes low morale. Racial tension and violence in the community 

causes low morale. I have not seen agencies that have suffered 

from low morale because you collect data. 

Policing in America is really a data-driven industry. It is kind of 

interesting that we don’t want to collect the statistics to show 

whether or not there is a problem that exists or identify the levels, 

and to make the argument we turn around and use those same statistics to show why we shouldn’t do it. This is a data-driven profession. I think the officers recognize that. They should be obligated 

to document the stops they make. 

It is probably the most awesome responsibility in this country, 

and I am not necessarily talking about the ability to take life, but 

the ability to take freedom without any type of due process. The 

ability to detain is very serious and it should be documented and 

it should be tracked. From statistics, you make intelligent inferences. I think officers understand that. 

One of the things we are looking at with agencies that are collecting data that I agree with is that they can actually fill out a 

form 5, 10 seconds after the stop and collect sufficient data to come 

up with comprehensive analysis. I think when officers understand 

the purpose of data collection, how increases community trust, how 

it increases the partnerships that will be necessary to reduce 

crime, then they enjoy a better relationship with their community 

and that reduces tension and increases morale. 

If you look at some of the cities across this country, and I will 

use Cincinnati as an example, there is not tension or low morale 

because we collect data. There is tension and low morale because 

67

there was racial tension, because there were minorities who felt 

disparate treatment. 

I would also say this in closing. I am a police officer, I am a commander. It is my job to serve the public. It is not the public’s job 

to serve me, and if it is a burden, so be it. I accept that as law 

enforcement. My obligation is to protect and defend the Constitution. 

Chairman FEINGOLD. Thank you very much, Captain. I do have 

more questions, but now we will turn to Senator Sessions for his 

first round of questions. 

Senator SESSIONS. Thank you. It is good to see Chief Greenberg 

again. I remember when I was United States Attorney in Mobile 

and we tried to lure him away from Charleston. We had him there 

for a number of months to run our department, but Charleston 

lured him back home, I suppose. He is one of the best-known police 

chiefs in America and has been the subject of ‘‘60 Minutes’’ and 

other national news shows about his effective and innovative ways 

of policing. 

His focus on community-based policing has now become the 

norm, hasn’t it, Chief, in America? 

Mr. GREENBERG. Yes, it has. 

Senator SESSIONS. Certainly, the Department of Justice over the 

last decade or more has emphasized that. It is something you 

championed early on, and that leads me to a question. 

Professor Lawrence Sherman, formerly of the University of 

Maryland and now, I think, the University of Pennsylvania, was 

the consultant for the Department of Justice under Attorney General Reno. I came to admire some of his work. One of the things 

he said was that the best way to fight crime is to look at zip codes, 

and where you have high crime rates in a certain zip code, if you 

place your resources there you will get the biggest bang for reducing crime. 

Would you agree with that, Mr. Greenberg? 

Mr. GREENBERG. Yes, I would agree with that. 

Senator SESSIONS. I would tell this story, Mr. Chairman. Around 

1990, I took the lead in a program called the Weed and Seed program in Mobile. The Martin Luther King area had declined; crime 

was rampant. Housing values had plummeted. The good neighborhood that so many fine African-American citizens had grown up in 

had completed gone down. 

We had a town meeting and we put up signs for people to come, 

and said we want to hear your views for solving the problem in 

your neighborhood and what we need to do to improve the neighborhood. They came back, and every one of our ten breakout groups 

of citizens said to do crime was either No. 1 or No. 2 on their list. 

They asked for more police. They asked for a police precinct to be 

put in that neighborhood because they were afraid for their lives 

and their children’s lives. 

So I guess what I am saying is, are you afraid, Chief Greenberg, 

that a police chief who is responding to the legitimate concerns of 

his citizens for public safety might be in a catch–22? If he is more 

aggressive in a neighborhood where the high crime rate is, which 

may be a minority neighborhood, he might be criticized statistically 

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in some way under this. Is that what maybe Dr. Fridell was suggesting, also? 

Mr. GREENBERG. Well, I am cognizant of that fear, but I am also 

more cognizant of the fear of the individual police officer about 

what is going to happen to him if he takes it upon himself to do 

in most cases what needs to be done, and that is to aggressively 

investigate crime. 

If you have these kinds of numbers taken, police officers are pretty smart and they are going to figure out a way that they will be 

on the right side of those numbers. If they know that a certain 

number of people are African-American or Hispanic or Asian or 

whatever, his arrests are not going to be too far out of line with 

that particular expectation. I think that is bad for law enforcement 

and I think that is bad for our country. 

I would not try to convince you that there are no racists in law 

enforcement, and I hope that none of you would try to convince me 

that there are no racists in Congress, because I don’t think either 

of us would be successful to convince each other of those things. 

Nonetheless, that does not mean that because there may be problem individuals in law enforcement that that necessarily permeates 

the whole law enforcement arena. It does not. 

Senator SESSIONS. Well, I guess the point I was raising and what 

you were suggesting there and Dr. Fridell was suggesting, I think, 

in her remarks is it could cause an officer to be intimidated from 

doing the very things necessary to protect the African-American 

community if we misread the data, if we over-read the data. 

Is that what you were saying, Dr. Fridell? 

Ms. FRIDELL. Yes. From my written remarks, we talked specifically about we have had some great discussions in some PERF 

meetings about all aspects of racially biased policing. One of the 

concerns that was raised several times is the chief said my minority communities come to me and they say we need help with crime 

and disorder, please provide more deployment and more officers 

down there. 

Of course, the responsible chief is going to respond to that. But 

the more deployments you have, then the more activity you are 

going to have and it is going to show disparate impact. So our concern that we were pointing out in our statement is that they need 

to respond, they will respond, but, in fact, they are setting up the 

statistics to be drawn into court with all of the resources that that 

entails to prove the negative. 

Senator SESSIONS. You mentioned that if you had disparate statistics, that could establish a prime facie case for a lawsuit of some 

kind. Would you explain that? 

Ms. FRIDELL. Well, yes. I was just commenting on 301 of Senate 

bill 989. It doesn’t indicate whether it is new data, but it is department data that could bring a department into court because the activities of law enforcement show a disparate impact on minority 

communities. So it definitely relates to what I just said. 

hen what I also added in my remarks is that the ability of social 

science—we can, depending on what benchmarks you use, show 

that disparity enough to get that department into court. Where we 

are sorely lacking is our ability to explain it, and we are putting 

the agency in the position to have to come in and prove the negaVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00072 Fmt 6633 Sfmt 6602 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
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tive based on disparity. I know there is very little in social science 

that will be able to help the agency. 

Senator SESSIONS. Mr. Young, have you done any analysis on the 

cost of this essentially unfunded mandate? 

Mr. YOUNG. No, sir, but the penalties in the bill, the threat of 

suspending Federal funds and the expected cost of litigation to both 

the agency and the agent—we haven’t done any math on that, but 

I would imagine it would be insurmountable for most agencies. 

Senator SESSIONS. Well, I would say this. I think it is likely that 

within every department there are some officers who subtly, if not 

otherwise, are biased in the way they go about enforcing the law. 

I think that is just life. We know that to be true. 

I think it is a high calling, Mr. Chairman, to try to do something 

about that, and it is not legitimate that an American citizen feels 

that they are more likely to be arrested or held to account or 

stopped and searched than someone else simply because of the 

color of their skin. So we have got a problem that I think is one 

that this Nation needs to wrestle with, that law enforcement needs 

to wrestle with. NOBLE is a fine organization and I respect it. 

It is a matter we need to wrestle with, but I don’t want to create 

a circumstance that has our communities maybe subject to more 

lawsuits than necessary, even causing them to pull back from 

neighborhoods where the neighborhoods have asked them to come 

to help reduce crime that is threatening the public safety. 

Thank you. 

Chairman FEINGOLD. Thank you, Senator Sessions. 

Let me begin another round, and before I ask a question I just 

want to again, in pursuit of the issue I am talking about with Mr. 

Young, just read the language in the bill because I sincerely want 

to make sure we are on the same page. 

The bill says on page 16 that racial profiling does not include reliance on such criteria in combination with other identifying factors 

when a law enforcement agent is seeking to apprehend a specific 

suspect whose race, ethnicity or national origin is part of the description of the suspect. So I hope later on we can talk about 

whether that adequately responds to your concern. 

If you would like to say something about that right now, you can. 

Mr. YOUNG. Well, Mr. Chairman, I took my language directly out 

of that. It is 501(c)(5) of the bill. In the definition of racial profiling 

it says, ‘‘The term ’racial profiling’ means the practice of a law enforcement agency relying to any degree on race, ethnicity, or national origin in selecting individuals to subject to routine investigatory procedures.’’ We may have a different perspective on the interpretation of that language, but to us, ‘‘to any degree’’ means not 

now, not ever. 

Chairman FEINGOLD. Let me assure you that the very purpose 

of the language I read is to limit the language you read, to make 

sure that it does not affect your ability to identify something with 

regard to an actual suspect. But we will pursue this more and I 

think you, in good faith, want to work with me to clarify that. 

Mr. YOUNG. Yes, sir. 

Chairman FEINGOLD. Let me go to what Senator Sessions had 

brought up, responding, in effect, to the arguments made both by 

Dr. Fridell and Mr. Young that a law enforcement agency that reVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
70

sponds to requests for help from a minority community with more 

policing is risking creating data that will support a claim that the 

agency is engaged in racial profiling. They cite the example of Arlington, Virginia. 

I am wondering if Professor Harris could respond to that. 

Mr. HARRIS. I would be glad to, Mr. Chairman. The context of 

any data collected is always a concern. If you are going to collect 

data, you have to be sensitive to the context from which it comes. 

This includes the neighborhood from which it comes. It includes 

perhaps any special operations or special assignments or special 

deployments that the department has made. 

So the example of Arlington that I saw in the testimony of Dr. 

Fridell—I understand where Chief Flynn is coming from, but if he 

collects the data and it shows a bulge in enforcement in that neighborhood, there is a perfectly good explanation for it. He has been 

asked to come in there and is doing the enforcement that the community wants, and nobody but nobody should take him to task for 

that as long as that is made clear. 

Now, it is true that people sometimes look at data simplistically 

and misuse it. I don’t know that we can help that, but to jump from 

that to say there is nothing that we could do with data, there is 

no way to collect it satisfactorily, there is no way that these contexts could be factored in, I just have to disagree with that strongly. 

Data with adequate benchmarks is being collected now in communities across the country. This is not only highway-type data, it 

is data from urban and suburban jurisdictions, mixed-use roadways. It can be done, it is being done. What it takes is our commitment to get it done and for our commitment to exist even when we 

have problems with crime in any particular neighborhood. 

Deployment does not mean that we are necessarily going to have 

more traffic stops or pedestrian stops. If I am a chief, I could put 

lots more officers in and order them to do something else. It is important that we have a handle on exactly what is going on so we 

can manage it, as Captain Davis said, and you can’t manage what 

you don’t measure. That is why we have to measure it. 

Ms. FRIDELL. May I respond? 

Chairman FEINGOLD. Yes, ma’am. 

Ms. FRIDELL. One of the parts of Mr. Harris’ remarks included 

having the chief go into court. First of all, the chief is going to have 

to go into court and explain this and this will take resources away 

from the community. 

David Harris and I have had a lot of discussions on benchmarks. 

In fact, he is going to be joining PERF, as well as Captain Davis, 

as a matter of fact, in coming up with guidance for law enforcement agencies so that we can develop what those best benchmarks 

are. So we have got a project that starts on Monday and Tuesday, 

bringing the best social scientists together, as well as law enforcement, and looking at how we can make it better. So PERF is certainly not throwing out the baby with the bath water. We want to 

make it better. But, again, the premise was that this chief has to 

get called into court. 

Chairman FEINGOLD. Doctor, I think we may be able to resolve 

that at some point, so we will work on that point. 

71

I am going to ask a different question. I think we need to get this 

on the record. Some have said—and Chief Greenberg’s testimony 

touches on this issue—that blacks and Hispanics carry more drugs 

and guns than their representation in the overall population would 

suggest. Therefore, it is rational, they say, for police to stop and 

search a disproportionate number of blacks and Hispanics. 

I would ask Professor Harris and Dr. Fridell if they agree with 

that and how they respond to that. First, Professor Harris. 

Mr. HARRIS. This is the argument that I hear most often in favor 

of using race as some component of law enforcement, that it is only 

rational or only makes common sense, given arrest figures or incarceration numbers. 

It is true that there is disproportionate African-American, Latino 

and other minority involvement in many types of crime. That is a 

sad fact, but it is a fact and I am not here to deny facts. I don’t 

think we get anywhere by doing that. 

What I can tell you is that the data show very clearly that using 

race to focus enforcement resources does not work, that it is inefficient. And the returns that law enforcement gets when it uses enforcement based in part or in whole, either one, on race are not as 

great as when it focuses on behavior. If it focuses on behavior, we 

are successful. That is the lesson of Commissioner Kelly and the 

Customs Service and it is the lesson we should all learn. 

When we focus on race, we get off the track, and instead of the 

higher numbers of African-Americans that that theory would predict, we get lower numbers. So we have to be sure to eliminate race 

so that we can have effective enforcement. 

Chairman FEINGOLD. Thank you. 

Dr. Fridell? 

Ms. FRIDELL. Yes. PERF has a policy. When we did a survey in 

our focus groups, we became very aware of the fact that police are 

not getting guidance in when it is appropriate to use race to make 

law enforcement decisions. 

First and foremost, as our policy says, you do not stop people unless you have reasonable suspicion or probable cause. The policy 

that we came up with—it took us about 8 months and we conferred 

with not only law enforcement executives, but constitutional scholars, to come up with both Fourth Amendment and 14th Amendment provisions that talk about when race can be used. 

Race is a demographic like height and eye color. It is a descriptor 

like clothes, and our policy cuts pretty close to what you have in 

the bill in saying that it is very restrictive and can never be used 

as the sole factor and can be used similar to other demographics 

like height, and so forth, to establish reasonable suspicion and 

probable cause. 

Chairman FEINGOLD. Thank you. 

Senator Sessions? 

Senator SESSIONS. Thank you. The Supreme Court has been pretty firm on this, and I think it is clearly a violation of an individual’s constitutional rights to be stopped solely for racial reasons. 

That can be raised now if you are arrested. You can use it to suppress a search. You can file a Bevins or some other lawsuit against 

the officers who do that. So we are not without any defense when 

that occurs. 

72

But I think most people are not going to file a lawsuit if they 

have been mistreated. They are just going to nurse a grudge and 

feel like their country hasn’t treated them fairly. So that is why we 

need to deal with it and keep talking about it and see if we can 

come up with a policy that will work. 

I just would offer for the record, Mr. Chairman, a letter from the 

city of Daleville, which noted that ‘‘the threat of being sued because 

proportions of people being stopped or arrested do not comply with 

federally prescribed formulas is... dangerous. I fear that lower-income African-American citizens, many of whom are elderly or single-parent families, are most vulnerable to the dangers brought 

about by a retreat from their neighborhood,’’ that is, by the police 

officers retreating. ‘‘They need our protection most. We cannot give 

it to them if we are under the threat of being sued.’’ He says, ‘‘I 

want to help you address the evils associated with racial profiling’’

and cautions us in that regard. 

I would like to offer that as part of the record. 

Chairman FEINGOLD. Without objection, it will be placed in the 

record. 

Senator SESSIONS. Mr. Kelly, you have taken some strong leadership on this. Have you had a chance to analyze this legislation as 

it is proposed today? I know Senator Feingold will consider any 

good suggestions we have. Do you have any parts of it that trouble 

you? 

Mr. KELLY. Well, there are some issues that I am concerned 

about. Again, in my prepared remarks I said I hope that law enforcement agencies would adopt these good practices that are being 

put forth by PERF and other law enforcement organizations, and 

do it on a voluntary basis. I think most thoughtful law enforcement 

executives know that something has to be done and this has to be 

addressed. 

I have some of the concerns that were voiced by Dr. Fridell, but 

I realize that, again, if the law enforcement community doesn’t respond adequately and in a timely fashion, some legislation will be 

needed. 

Senator SESSIONS. Dr. Fridell, with regard to this prime facie 

standard, as you read the legislation now, what kind of numbers 

would justify creation—a prime facie standard means that you can 

file a lawsuit and you can keep the case in court simply on a statistical outcome from this data. What kind of numbers would a plaintiff have to have to justify establishing a prime facie case to go forward? 

Ms. FRIDELL. Well, I think one of the problems is that it is certainly not clear. Again, as I said, we do have the ability—

Senator SESSIONS. Just exceeding the—

Ms. FRIDELL. That is what I am afraid will happen, for instance, 

people using census data to benchmark their data. Again, I hope 

we come up with better measures, but when you are using census 

data to compare to your stop data, you are leaving out all the other 

things. You are assuming that the people on the streets are the 

same as those in the neighborhoods. You are assuming that driving 

behavior is the same, amount of driving behavior is the same, and 

deployment. 

73

San Diego is a good example. Their first report of data collection 

came out using 1990 census data. Of course, they are an international border city, so how can we assume that the people on the 

roads are, in fact, the same as the residents? 

Senator SESSIONS. I hear that Cincinnati and Seattle, which 

have gone toward this policy to some degree, have shown a decline 

in enforcement in minority neighborhoods. Has anyone heard that? 

Dr. Harris, would you like to comment on that? 

Mr. HARRIS. Yes, Senator Sessions, I have heard that with respect to Cincinnati, not to Seattle. It is important, I think, to remember that the great outcry in Cincinnati followed a situation of 

civil unrest. But it is also important to know that Cincinnati was, 

in the estimation of many, a tinder box, a kind of accident waiting 

to happen, that any particular incident could have set it off. 

I spoke in Cincinnati 15 months before the incident that sparked 

the riots in a church basement setting. There were hundreds of 

people at this meeting on this issue. It is almost unheard of in that 

neighborhood-type politics. That indicated to me that people wanted something done and they wanted it addressed. 

The fact that there has been some pulling back, as it has been 

characterized, I think is very unfortunate if that is true. But I 

would go back to what Captain Davis said a few minutes ago. If 

officers are pulling back and saying it is our way or the highway, 

or there is only one way to do this or we fear doing our jobs, that 

shows a failure of leadership. 

You cannot have a police department that simply says, well, we 

are not going to do it, we are not going to go in there; even though 

people are getting shot and killed, we are not going to do it. There 

has to be a different attitude at the top so that the people all the 

way down know that it is not acceptable to disengage. 

Chairman FEINGOLD. Thank you very much. I will start another 

round. Perhaps this will be the last one, but I do have a couple 

more questions. I would like to go to the issue you were just discussing. 

Professor Harris, Mr. Young and Ms. Fridell criticize the section 

of the bill that provides ‘‘the proof that investigative activities have 

a disparate impact on minorities shall constitute prime facie evidence of a violation of this title.’’ They seem to suggest that this 

would make any statistical study a weapon in a case against a police department. But the section says ‘‘proof of a disparate impact.’’

Now, how do you understand that provision will work, and if you 

could comment specifically on the effect of this prime facie evidence 

standard? 

Mr. HARRIS. The prime facie evidence standard and the idea of 

disparate impact evidence is not a new one. It is common in civil 

rights law and in employment law. We use this all the time. There 

is nothing new about this. Putting this into this bill in this context 

simply means that mere allegations will not suffice. You have to 

have proof, you have to have a study that shows clearly disparate 

impact. 

The bill also makes clear by using the phrase ‘‘prime facie’’ that 

this evidence can be rebutted. Any sufficient explanation, any kind 

of contextual explanation would suffice to rebut it. It is not a mandatory presumption, it is not a presumption, in fact, at all. 

74

The fact that this is that open-ended is enough to protect police 

departments against the feared frivolous litigation. I just don’t 

think that that would materialize at all because people know that 

they not only have to get in court, but they are going to have put 

forth that proof that the statute calls for. Mere allegations would 

not be enough. To anticipate a flood of litigation, I think, is greatly 

mistaken. 

Chairman FEINGOLD. Captain Davis, did you want to say something about that? 

Mr. DAVIS. Yes. I agree with Professor Harris, and I disagree 

with the idea about the census data. I think working with community-based organizations and civil rights organizations in collecting 

data in Oakland, the community is very aware of the variables involved in policing. It is a very complex job, and so it is not really 

a tendency necessarily to take the census data and automatically 

say that there are disparities. We do take a look at population density and calls for service and how officers are deployed. 

But when you look at proof of disparity, then all those variables 

will be included in that proof. So I don’t think it suggests to me 

or my colleagues that mere disparate numbers between the census 

and the numbers of stops conducted would constitute prime facie 

evidence. It would mean that the statistics, plus possibly allegations from the community, plus other evidence would establish 

proof. 

So I think we have to step away from census data. It is just one 

tool. It is something like the Uniform Crime Report process we 

have. It shows us how many Part I offenses are committed in this 

country every year, but it does not suggest how much crime occurs 

every year. It is one benchmark that law enforcement can use to 

see if crime increases or decreases, so it is one very effective tool. 

As a police manager, what I need are tools for effective management. I need to look at my systems, and it is not about individuals 

officers; it is about institutional behavior and can I track which 

systems where bias is influencing the decisions that we make and 

then coming up with solutions. If I don’t collect the data, I don’t 

know. 

Two years ago, most of the people in this room who are now talking about establishing benchmarks made the argument that racial 

profiling was nothing but a perception of the minority community. 

They did not accept anecdotal evidence from the minority community. I am sitting here as a black man and a captain and I am telling you it exists. I am telling you as a manager that the data is 

necessary. 

Two years from now, the actual data collection process will be 

something that will be part of the day-to-day business and operations of policing. And I will offer that we will probably learn more 

about managerial effectiveness through this data collection than 

anything else. Are our tactics working and what is the cost/benefit 

of using race and are we using race? So I think it is the most critical first step to address this issue of bias-based policing and racial 

profiling. 

Chairman FEINGOLD. Thank you, Captain. 

Mr. Henson, you were reacting to Captain Davis. Did you want 

to comment on that? 

75

Mr. Henson. Yes, thank you, Senator. I agree fully with Captain 

Davis’ remarks. I can share with you what we do in the city of 

Hayward, and that is reflective of many of my colleagues that are 

a part of the National League of Cities as well. 

We do collect the data based on many of the factors as expressed 

by Captain Davis. We take that data; it is computerized. It comes 

before the local body, which is the city council, on which I am a 

representative. We discuss it openly, we make comments about it. 

We speak to our chief on the needs of that data. We enlist the 

input of all the community members. 

This is something that we believe fosters good community policing. We have never had any problem with getting the community 

input into this process. So I agree with him. The end-all is not simply the collection of data, but it is the aftermath as well. 

Chairman FEINGOLD. Thank you so much. 

Senator Sessions, did you have anything further? 

Senator SESSIONS. Chief Greenberg, I read this letter from Director of Public Safety Jimmy Seaton at Daleville. I also have a news 

article here, I believe, from the Seattle paper and this was the lead 

paragraph: ‘‘Amid charges of racism, many Seattle police officers 

say they are cutting back on the number of arrests they make in 

minority communities. Officers still respond to 911 emergency 

calls, but cops on the beat are ignoring many traffic violations and 

other minor offenses. This form of passive law enforcement some 

are calling the cops tourist in blue is not official policy, but the 

practice is growing among individual officers who fear more aggressive police work will be labeled racial profiling.’’

Based on your experience as a grass-roots leader in promoting 

cops out on the beat doing their jobs on a daily basis, is this a concern you have that somehow if we do this wrong we could do more 

harm than good? 

Mr. GREENBERG. Yes, sir, if we go about it in the wrong way. As 

I said before, and I hate to repeat myself, but police officers are 

going to find out what it is their boss expects of them on whatever 

beat they work on anywhere in the city. They are going to find out 

what are the number expectations and they are going to try to 

meet those number expectations without imperiling themselves 

physically and without imperiling their particular jobs. 

There will be officers who are going to back off, as they have in 

some of the other States that already have State legislation that 

inappropriately addresses this problem. They are going to figure 

out a way to be in line with what somebody somewhere else outside 

the law enforcement community is going to expect of them. 

Senator SESSIONS. Now, is it your belief, your passion, as I understand it, having heard you speak, that the minority communities of this country deserve as much protection and as low a 

crime rate as any other neighborhood in your city? 

Mr. GREENBERG. That is correct. 

Senator SESSIONS. And when you have a situation where 12 percent of the population is African-American, but 54 percent of the 

murders—they are victimized by murders by that high a rate and 

the perpetrators tend to be of the same race as the victims. 

Mr. GREENBERG. That is correct. 

76

Senator SESSIONS. Is it a concern that we may be creating a system here that actually undermines protection for law-abiding minority citizens? 

Mr. GREENBERG. That could be one of the results, yes. I find it 

very difficult to understand how we could have such high rates of 

victimization and not correspondingly have high rates of police contact to address the needs of those particular victims with reference 

to enforcing the law, since in our country people who are victims 

of rape or people who are victims of homicide tend to be victims 

from their own community. They are victimized by people in their 

own community. 

You are not going to be able to have a positive impact on reducing the amount of high victimization that exists in minority communities with respect to certain kinds of crimes without having 

contact with those minorities in those communities. 

Senator SESSIONS. Thank you. 

Mr. Chairman, I would just say I believe there has been—and to 

some degree under the leadership of people like Chief Greenberg 

it has been broken down, but there was a subtle form of racism in 

America in which police officers just didn’t take it as their responsibility to patrol, protect and defend minority citizens to the same 

degree as they did white citizens from being victims of crime. I 

think that was a serious problem. 

I think most police departments in America today are doing a 

better job of responding to the honest cries of good and decent people for protection. I think that is one of the reasons that the crime 

rate has gone down in America, Community-based policing focusing 

on areas where crime is out of control, bringing it under control, 

and getting dramatic improvements and reduction in victimization, 

which is the ultimate goal. It is not to put anybody in jail; it is to 

reduce victimization so you don’t have to punish people. 

You are talking about a delicate, sensitive issue that is difficult 

to quantify in numerical terms, but is a real issue. We need to 

make sure that every American feels, no matter what their color, 

that they are going to be treated fairly when a police officer is up 

at their door or their automobile. So how to do it, I don’t know, but 

thank you for your leadership. 

Chairman FEINGOLD. Senator Sessions, thank you for your candor and your taking this issue seriously. 

We are about to bring this to a conclusion, but I do want Professor Harris to respond to this testimony as to the question of, if 

this law is passed, whether police departments will ignore minority 

areas, leading to the effect that there will be greater victimization 

of minorities. 

I wonder if you could respond to that, Professor? 

Mr. HARRIS. Yes, sir, I would be glad to. When we talk about 

changing the incentive structure and the cues, if you like, that law 

enforcement officers respond to, we have to be aware that there is 

an existing set of incentives already out there. 

There is no reason that we cannot have enforcement that is 

tough and effective, but also respectful. I started that way and I 

will say that again. If we have disengagement, if officers come to 

feel that they are going to be under the gun for going into minority 

communities or doing enforcement in minority communities, again 

77

that represents a failure of leadership on the level of explaining it 

to them, on the level of having it be policy in the department, on 

the level of training, all of which are addressed by S. 989 in the 

best practices grants. 

If we want to have enforcement in our communities that is effective and that is respectful of people, there is no reason why we 

can’t have it. There is not a choice between tough and respectful. 

We can have both, and we will. Chiefs around the country are 

doing that. If there is disengagement, that is a by-product that has 

to be addressed. Police have to be told that it won’t be tolerated. 

As Senator Sessions says, that is a subtle form of racism, no matter 

when it occurs and for what reason. No American should put up 

with that, and for that reason this bill is the way to start toward 

having effective and respectful treatment for everyone. 

Chairman FEINGOLD. Thank you, Professor. I want to thank everyone. If there are no further questions, I am grateful for all the 

time that you have put in and your patience. This has been a very 

productive and lively hearing, and I think we all benefited from the 

different perspectives that you offered on this issue. It is my hope 

that we will work very closely with the Department of Justice on 

this legislation and that the full Committee will mark up this legislation this fall. 

Let me just say to all of those who represent law enforcement organizations that we intend to speak with you, work with you, and 

that is exactly what I am already in the process of doing in Wisconsin, and we will do so nationally, to address some of the concerns. 

Let me note that the record will remain open for additional submission by the witnesses or for written testimony from other individuals or groups for 1 week. In addition, I will ask Senators to 

submit any written questions that they have for the witnesses 

within the same period of time. I, of course, hope that the witnesses will give us their written responses promptly. 

Again, I thank all of you for coming. 

Senator SESSIONS. Mr. Chairman, could I just offer a letter from 

VOCAL, a premier victims rights group in Alabama, signed by Executive Director Miriam Shehane, relating to this legislation. 

Chairman FEINGOLD. Without objection. 

The hearing is adjourned. 

[Whereupon, at 1:06 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

SUBMISSIONS FOR THE RECORD

AMERICAN CIVIL LIBERTIES UNION

WASHINGTON, D.C. 20002

July 31, 2001

Senator Russell Feingold, Chairman 

Constitution Sub-Committee 

Senate Judiciary Committee 

5116 Dirkson Senate Office Building 

Washington, DC 20510

Dear Senator Feingold:

We are writing in support of S. 989, ‘‘The End Racial Profiling Act of 2001.’’ We 

appreciate the leadership you have shown on the issue of racial profiling. 

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Racial profiling is not a new problem. However, it has only recently garnered the 

type of public attention that it deserves. Unfortunately, since the issue has come 

to light, the federal government has been sluggish in acting. This landmark legislation is a necessary first step to developing a comprehensive response to racial 

profiling. 

First, the bill defines racial profiling, and bans it. While most people agree that 

racial profiling is wrong, some disagree about how it should be defined. A federal 

definition would ensure that people traveling throughout the country know what to 

expect whether they are in Oklahoma or Maryland or another state. The bill also 

creates a limited right for individuals who have been victimized by racial profiling 

to go to court to seek injunctive or declaratory relief. It does not authorize money 

damages against police departments that have engaged in racial profiling. 

More importantly, the bill gives the Attorney General the authority to establish 

categories of information to be collected on law enforcement encounters in order to 

determine whether racial profiling is occurring. The ACLU believes that data collection must be an integral part of any serious effort to address racial profiling. Those 

who claim that racial profiling is a problem, and those who disagree, will use anecdotes to make their arguments. Only careful data collection and analysis of data can 

provide the information necessary to assess whether there is a problem, and the extent of any problem that is identified. 

Data collection is also a vital tool that can help the management of a law enforcement agency track potential problems and focus limited resources on effective responses. Data collection can also help a police department demonstrate to minority 

communities that the police department is responding to the concerns of the communities. 

While the bill requires data collection and bans racial profiling, it also allows for 

needed flexibility. For example, it gives the Attorney General discretion to decide 

what types of data will be collected, and the discretion to decide whether a law enforcement agency that has failed to address racial profiling should lose any federal 

funding. The bill also establishes a grant program to help law enforcement agencies 

implement data collection and other types of best police practices. 

Lastly, this bill has significant law enforcement support. The Alliance of Minority 

Law Enforcement Agencies, which includes every minority law enforcement organization in the country, supports the legislation. The bill has support from non-minority law enforcement as well. 

Sheriff Robert A. Ficano of Wayne County Michigan endorsed the legislation at 

a press conference introducing the bill. Sheriff Ficano put it best when he said, ‘‘Racial profiling is not a legitimate tool for law enforcement. It is not only unconstitutional; more importantly, it is wrong. Law enforcement should work together to end 

a practice that casts a large shadow over public trust. Racial profiling is deeply corrosive to police and community relations.’’

Attached to this letter is an Executive Summary to a report that we will be releasing this fall. Please feel free to include this letter and the Executive Summary 

in the record of the hearings on this legislation. 

Sincerely,

LAURA W. MURPHY, DIRECTOR

Washington National Office 

American Civil Liberties Union

RACHEL KING, LEGISLATIVE COUNSEL

Washington National Office 

fAmerican Civil Liberties Union

Additional Statement of Laura W. Murphy, Director, American Civil 

Liberties Union, Washington, D.C. 

AN OVERVIEW AND RECOMMENDATIONS

In June 1999, the American Civil Liberties Union issued our first report on racial 

profiling, entitled ‘‘Driving While Black.’’ At that time, most of the American public 

had never heard the term ‘‘racial profiling’’ or its derisive nickname, ‘‘driving while 

black or brown.’’ And although the police practice of targeting African-American and 

Latino drivers for traffic stops and searches was all too well known in minority comVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00082 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
79

munities, there was little hope or expectation in those communities that the problem would ever be addressed. 

Two years later, the ACLU is preparing a second report on racial profiling, which 

will be released in the fall. The new report will discuss the progress that has been 

achieved in the fight against racial profiling as well as the obstacles that remain, 

and will make specific recommendations for eradicating this scourge. Above all, the 

report will urge lawmakers to pass federal legislation that clearly defines and outlaws racial profiling in all contexts and in every state. 

Much has changed in the two years since we issued our first report. Polls now 

show that a majority of the American public is aware of, and disapproves of, racial 

profiling. Nine states have passed effective legislation addressing the problem. 

Many police departments have voluntarily begun collecting data on traffic stops in 

an effort to determine whether their officers engage in racial profiling. A powerful 

bill that would ban racial profiling has been introduced in Congress. And President 

Bush, Attorney General John Ashcroft, former President Clinton, and many other 

prominent officials have spoken out against racial profiling. 

This is the good news. Yet racial profiling remains a fact of life in America. Lethal 

encounters in which unarmed black or brown people are shot and killed by white 

police officers grab the media spotlight and shock the public—as well they should. 

But for every headline-worthy horror like these, there are thousands of other everyday horrors that are unknown by all but their victims: ordinary, law-abiding men 

and women who are systematically harassed and sometimes physically intimidated 

by the police simply because of their ethnicity or the color of their skin. 

Moreover, although many public officials now admit that racial profiling exists, 

few have the courage to publicly confront the larger context in which it occurs, or 

the invidious role it plays in our national life. Politicians find it difficult to acknowledge that racial profiling is but the first step in an inexorable process, justified by 

the so-called war on drugs, that feeds a swollen prison population that is overwhelmingly black and brown. 

Racial profiling is a self-fulfilling prophecy based on erroneous racial stereotypes 

about who uses and sells illicit drugs. When the American public, including the police, look at who is in prison, they see a sea of black and brown faces and assume 

that people of color are responsible for most of the drug-related crime in America. 

This assumption is used to justify racial profiling, and the beat goes on. 

This assumption, however, is false. Every comprehensive study of racial profiling 

has revealed that, in fact, people of color are no more likely than whites to be carrying drugs or other contraband in their vehicles. Indeed, the Department of Justice’s 1999 national survey of Contacts Between Police and the Public found that 

‘‘[s]earches of white drivers and their vehicles were more likely to find criminal evidence (17%) than searches of blacks (8%).’’

Yet because African-Americans and Latinos are targeted, stopped, and searched 

at grossly disproportionate rates, they are also arrested and incarcerated at grossly 

disproportionate rates. The former New Jersey Attorney General dubbed this phenomenon ‘‘the circular illogic’’ of racial profiling. Law enforcement officials often 

point to the racial composition of our prisons and jails as a justification for racial 

profiling, yet the racial makeup of those behind bars is itself largely a product of 

racial profiling. 

Police officials typically justify racial profiling programs with the claim that they 

target African-American and Latino neighborhoods and cars because ‘‘that is where 

the drugs are.’’ But in truth, study after study shows that whites and nonwhites 

alike use and traffic in illegal drugs at rates that roughly match their percentages 

in the general population. So, for example, African-Americans make up 13% of the 

population and, according to the government’s own best statistics, they constitute 

15 to 20% of the nation’s illicit drug users. Yet, they are 74% of those imprisoned 

for drug possession. The disproportionate number of people of color who are caught 

with drugs reflects not who uses or sells drugs more, but who is stopped and 

searched for drugs more. 

A matrix of government policies and practices conspires to perpetuate the overincarceration of black and brown men, and the terrible effects are now all too familiar. The Sentencing Project, which tracks and analyzes criminal justice statistics, 

calculates that almost one in three (32%) of black men ages 20-29 are incarcerated, 

on probation, or on parole (as compared to one in 15 white men of the same age 

range). This has had a devastating impact not only on hundreds of thousands of individual lives, but on minority families and communities. 

Much less notice, however, has been paid to the crucial role that racial profiling 

has paid in producing these statistics. Police officers who assume that black and 

brown drivers are carrying drugs, and who therefore engage in racial profiling, cast 

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the massive dragnet that plucks people off the highways and streets and drops them 

into the criminal justice system. 

Although traffic stops and searches are the form of racial profiling that has received the most media attention, profiling takes place off the roadways as well. 

Black and Latino pedestrians, particularly in certain neighborhoods, are regularly 

stopped and frisked without reasonable cause. Customs officials at international airports systematically target members of certain racial and ethnic groups, particularly 

black women, for intrusive and degrading personal searches, based on the false assumption that they are more likely to be transporting drugs. 

Recent statistics from the New York District of the Immigration and Naturalization Service reveal that, for years, the INS has engaged in racial profiling as well. 

INS agents systematically single out Latinos in workplace raids, and 95 percent of 

people arrested by the INS–NY are from Mexico, Central America, and South America—a figure grossly disproportionate to the demographic makeup of the area’s population of undocumented aliens. 

Moreover, the ACLU is aware of incidents in which black boys on bicycles have 

been stopped and harassed by the police for being ‘‘in the wrong neighborhood,’’ and 

in which black teenagers have been singled out on the basis of their skin color, and 

falsely accused of crimes committed in swimming pools. 

Nor are blacks and Latinos the only groups that are subjected to such stereotyping and abuse by law enforcement officials. For example, people who have studied the prosecution against Wen Ho Lee, a government scientist who was accused 

of espionage-related crimes and treated far more harshly than was appropriate or 

necessary—and against whom most of the charges were eventually dropped—believe 

that he was singled out because he is foreign-born and of Asian ancestry. 

The sad fact is that although much progress has been made in the United States 

to eradicate official discrimination, racial profiling and the racist assumptions that 

underlie it are deeply imbedded in America’s culture, and particularly in police culture. Not all police are racist, and not all view every black or brown driver as a 

suspect. But because racism is so pervasive and so entrenched, even ‘‘good’’ officers 

may harbor unconscious racial stereotypes. That is why the mechanisms that foster 

racial profiling—pretext stops, consent searches, and any other practices that give 

police broad discretion to stop and search drivers despite little or no reason to suspect criminal activity—must be banned through federal and state legislation. Such 

legislation must clearly define, and explicitly outlaw, racial profiling. 

Even with the passage of strong legislation banning racial profiling, however, 

eradicating it will be no easy task. Major hurdles remain, and more will appear as 

the inevitable backlash movement builds. Already, several conservative commentators have published articles in the press reasserting the false claim that racial 

profiling is necessary and appropriate to stop the flood of drug-related crimes by 

blacks and Latinos. 

In addition, two recent decisions by the United States Supreme Court—in Atwater

v. City of Lago Vista and Alexander v. Sandoval—pose new obstacles to reform. The 

Atwater decision gives police the power to arrest and search people—and in many 

instances to jail them—for even the most minor infractions, even if only a fine would 

result if there were a finding of guilt. The Sandoval decision limits plaintiffs’ ability 

to use Title VI of the Civil Rights Act of 1964, which has formed the basis for many 

racial profiling lawsuits, to seek redress for discrimination. 

Moreover, several state legislatures recently have either failed to enact proposed 

legislation aimed at ending racial profiling, or have watered the bills down until 

they are virtually powerless. 

These hurdles may slow, but they will not stop, the essential civil rights struggle 

of our time——the fight to end racial profiling and the discriminatory mass incarceration of a generation. This struggle is as crucial and historic as the fight to end 

segregation was in the 1950s and ‘60s. As segregation did in its day, racial profiling 

assigns second-class citizenship based on race, and perpetuates a racist system in 

which whites can move freely in society, but people of color cannot. Rather than 

being forced to live on the ‘‘other’’ side of town, black and brown citizens are targeted, searched, and swept off to prisons on the basis of race. This new system of 

segregation appears race-neutral, and the rationale seems well intentioned: fighting 

drugs and crime. 

Yet over the past two decades, the war on drugs has revealed itself to have little 

to do with solving the problem of drug abuse, and much to do with targeting communities of color for mass incarceration. This new form of discrimination and segregation does not only affect the guilty. Thousands of innocent, law-abiding people 

of color, who are simply trying to live a successful, decent life, find themselves 

stranded by the side of the road, fielding questions about imagined drug-related 

crimes, terrified that they too may find themselves swept into the criminal justice 

81

system because of the color of their skin. The ordeal often begins with a simple traffic stop. 

We must put an end to racial profiling forever. We call on every Member of Congress to join us in this crucial and historic fight. 

There can be no question that, since the ACLU released our first report on racial 

profiling two years ago, much of the American public, many police departments, and 

government officials at every level have become aware of and now oppose the practice of racial profiling. 

‘‘Racial profiling’’ and ‘‘driving while black or brown’’ are now household words in 

white as well as black and Latino communities. Newspapers routinely report new 

revelations of racial profiling. Town meetings on racial profiling are packed with 

citizens in neighborhoods nationwide. An estimated 400 police departments across 

the country have acknowledged that racial profiling may be a problem among their 

officers and have taken steps to address it. Nine states—North Carolina, Connecticut, Rhode Island, Tennessee, Kansas, Washington, Massachusetts, Missouri, 

and Maryland—have passed legislation that addresses the problem by requiring police to collect data on traffic stops, and many more states are expected to do so this 

year. 

Moreover, recent polls show that most of the public is now aware of racial 

profiling, believes it is wrong, and wants it to stop. A Gallup poll taken last year 

found that 81 % of Americans now reject racial profiling as wrong, and that 59% 

(including 56% of white respondents) believed it was taking place on a ‘‘widespread’’

basis. 

In the past two years there have been some important victories in the war on racial profiling. For example, the California Highway Patrol announced in April that 

it is placing a moratorium on ‘‘consent searches,’’ which have been a major factor 

in racial profiling in Northern California. Although the police commissioner denies 

that racial profiling is a problem among his officers, the ban on consent searches 

is an extremely positive step toward ending discriminatory police practices. 

In another surprising and encouraging development, new statistics show that traffic stop searches have dropped dramatically along the southern New Jersey Turnpike, a notorious stretch of highway that has become a national symbol of police 

misconduct. Although the figures indicate that minority drivers are still disproportionately searched there, the drop in searches is good news and an encouraging sign 

that New Jersey’s police may be changing their ways. 

Despite this very real progress, however, there is still a very long way to go. The 

national disgrace of racial profiling is still a reality that subjects people of color all 

across America to systematic harassment and abuse by the police every day. Although some localities now voluntarily collect data on traffic stops, and some states 

have passed valuable legislation, in most parts of the country no steps have been 

taken to combat racial profiling, and this illegal practice is allowed to continue—

despite the fact that ignorance, skepticism, and denial no longer serve as excuses. 

Racial profiling and the attitudes and assumptions that lead to discriminatory 

traffic stops and searches, permeate our entire society, and lead to similar abuses 

in a range of other contexts. In April, the city of Cincinnati was under nighttime 

curfew for five days following disturbances that arose after a white officer shot an 

unarmed black man. 

This tragic killing, whose particulars—including the policeman who claims to 

have thought the victim was reaching for a gun—have become painfully familiar, 

reflects the prejudice and the lack of restraint that fuel racial profiling and enable 

it to continue. 

DATA COLLECTION: THE ROAD TO REFORM

Data collection—documenting who is stopped by police and what happens during 

each stop -has proven to be an extremely valuable weapon in the war against racial 

profiling. It convinces the public and the police that racial profiling is occurring, and 

offers some insights into who is engaging in the practice, and where it is taking 

place. Police departments across the country are now compiling data on whom they 

stop on the highways, for what reasons, how those drivers and passengers are treated, and the outcome of each stop. Some agencies have undertaken the data collection voluntarily, others have been required by legislation to do so, and still others 

are complying with the terms of a settlement agreement achieved through a lawsuit. 

The data collection efforts that are now underway vary considerably in thoroughness and value. Some are perfunctory, with officers required to record only the most 

basic information, and are in effect only for a short period. Others require completion of a detailed, highly specific questionnaire and are in effect indefinitely. 

82

Despite the lack of consistency in the data collection process, virtually all police 

department’s data that have been collected thus far reveal that nonwhite drivers are 

stopped and searched far more often than whites, and far out of proportion to their 

numbers and percentages on the roads. The data also refute the claim that 

nonwhite drivers are more likely than whites to be involved in drug-related 

crimes—the claim that police and others typically make in order to justify racial 

profiling. 

These data are extremely valuable. They persuade the public that racial profiling 

is a serious, widespread problem that must be addressed. And they force police departments to face up to their own complicity and lead them to implement reforms. 

Moreover, police departments that begin collecting data and show that they take the 

findings seriously build trust and cooperatoin among their communities, which in 

turn helps them to be more effective at fighting crime. 

Police departments in at least 25 of the largest 50 cities in the United States have 

now implemented or have publicly agreed to implement data collection programs— and nearly three quarters of these agencies have made that commitment voluntarily. This is to be applauded. Yet most of the nation’s major urban police departments still have not taken action. Fifteen or more state police agencies now have 

traffic stop data programs, but most state police agencies do not. 

And while hundreds of agencies are now addressing racial profiling with data collection—and that is hundreds more than when the ACLU’s first report on this issue 

was released—the current best estimate is that more than 90% of the nation’s law 

enforcement agencies have not yet acted. Clearly, this figure must decline if further 

progress is to be made. 

SEARCH DATA: THE REAL STORY

As useful and necessary as it is to collect data on traffic stops, collecting and analyzing data on searches that result from those stops is even more crucial. Statistics 

on what happens after cars are stopped—how drivers and passengers are treated 

by the police—are often more revealing, and more racially disparate—than the traffic stop data themselves. Search data should be analyzed according to the races of 

drivers who were searched, and what, if anything, was found. 

It is virtually always possible for the police to legally justify a traffic stop, since 

all drivers are almost certain to violate minor traffic laws. But searches tell more 

about police behavior. Most car and driver searches are ‘‘by consent’’—that is, they 

are not undertaken because a police officer sees something that constitutes probable 

cause, or because there is a warrant out on the driver. Thus the search data are 

a good indication of how police are exercising their discretion. 

For example, figures that were released by the federal government in March 2001, 

as part of the Police Public Contact Survey, show that black and white drivers were 

not stopped in dramatically different numbers. The report’s figures on searches, 

however, tell a different story. The racial disparity for searches is far more marked 

than that for stops. Moreover, a lower percentage of nonwhite drivers were found 

to have illegal drugs in their cars, contradicting the common belief that blacks and 

Latinos are more likely to have drugs. 

But many traffic stop searches are more than simply useless: they are often a 

form of terror meted out disproportionately on black and Latino drivers. At the New 

Jersey hearings on racial profiling held in the spring of 2001, a state trooper testified that some state troopers bully minority motorists into allowing them to search 

their cars, even when there is little or no reason to suspect them of carrying drugs 

or weapons. He also said that black and Latino drivers are well aware that when 

they are asked to give consent to a .search, they had better say ‘‘yes.’’ ‘‘Consent’’ searches give abusive officers an easy excuse to mistreat innocent drivers, especially nonwhite drivers. They do nothing to further the prevention of crime. 

And they prove (as if any proof were needed) the necessity of the Constitution’s Fourth Amendment ban on unreasonable searches and seizures. 

LITIGATION: ANOTHER ROAD TO REFORM

Litigation has been a powerful weapon in the war on racial profiling. Since our 

first report was released, we have achieved important progress in several key lawsuits, and new cases have been filed by the ACLU and other groups across the country. Successful lawsuits can lead to settlement agreements or consent decrees that 

compel police departments to begin data collection and to discontinue discriminatory 

practices. Most recently, the chief of the California Highway Patrol announced a 

moratorium on consent stops throughout the state. Although he denies that the 

ACLU’s lawsuit in California was a factor in the decision, it appears that the litigation did, in fact, play a role. 

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Of course, not all litigation results in a favorable ruling. The 1996 Supreme Court 

decision in Whren v. United States has become a considerable roadblock to lawsuits 

challenging racial profiling. In Whren, the Court ruled that police may use a traffic 

violation to justify a traffic stop, even if their real purpose for the stop is to search 

a vehicle. The Court concluded unanimously that such stops do not violate the 

Fourth Amendment, which prohibits unjustified searches and seizures. The Court 

said, however, that challenges alleging selective (i.e., racebased) enforcement of the 

law may be brought under the Equal Protection Cause of the Constitution. Such 

challenges have resulted in several highly effective rulings. 

The two recent decisions by the Supreme Court, in Atwater v. City of Lago Vista

and in Sandoval v. Alexander, are also likely to make it considerably more difficult 

to address the harms of racial profiling. The Sandoval decision, which does not directly address police practices, says that in cases based on Title VI regulations of 

the Civil Rights Act of 1964, it is no longer sufficient to show that police practices 

have a discriminatory impact; plaintiffs will now be required to show that they also 

have a discriminatory intent. This is sometimes, but not always, possible to demonstrate. Title VI regulations have been an important tool in challenging racial 

profiling. The Sandoval decision, by blunting that tool, raises the prospect that, in 

some cases, racial profiling practices that have a clearly discriminatory impact may 

now be allowed to continue. 

The Atwater decision, which does address police practices, ignores the reality of 

racial profiling and virtually encourages and invites the police to stop, search, and 

even jail people with little or no reason to suspect them of crimes. This extremely 

dangerous ruling flies in the face of all the evidence that has been gathered in recent years about the need to limit police discretion and to take steps to reduce, rather than expand, individual officers’ ability to target and harass drivers. It too will 

make it more difficult to bring and win racial profiling lawsuits. 

THE DEA AND OPERATION PIPELINE: THE ROAD TO RACIAL PROFILING

As the ACLU pointed out in our 1999 report, much of the blame for the country’s 

racial profiling problem stems from the so-called war on drugs. In the name of this 

‘‘war,’’ the DEA ‘s Operation Pipeline program has trained tens of thousands of the 

nation’s police officers in the use of pretextual traffic stops in a ‘‘needle in a haystack’’ hunt for drugs among the overwhelmingly innocent driving public. 

The stops that are made, while based on minor traffic violations, have nothing at 

all to do with traffic safety concerns. These stops, and the searches that often result, 

are based on the idea that it’s appropriate and ‘‘worth it’’ to detain large numbers 

of innocent people in the hope of catching the guilty few who may be transporting 

drugs. 

As all the data reported to date confirm, officers involved in these operations stop, 

inconvenience, and sometimes terrify far more innocent than guilty people. That’s 

because, as one might expect, there is no correlation at all between committing 

minor traffic offenses -failing to signal a lane change, drifting a few miles above or 

below the speed limit, driving with overly worn tire treads, etc.—and a propensity 

to act as a drug courier or ‘‘mule.’’

If the police can stop anyone and everyone, the question becomes whom they are 

more likely to stop and/or search when their motivation has nothing at all to do 

with traffic safety and everything to do with guesses and hunches about who may 

be transporting drugs. Thus engaging in this type of law enforcement by hunch invites officers to rely on racial and ethnic stereotypes. 

In fact, the DEA has not only permitted police officers to rely on stereotypes—

it has taught them to do so. Training materials produced by the DEA and distributed to police departments across the country include specific characteristics of drivers to be targeted for stops and searches. These descriptions, the materials claim, 

serve as tip-offs as to who is likely to be transporting drugs. 

It is therefore no surprise that litigation research, news accounts, and various investigations, have shown an obvious correlation between serious racial profiling 

problems and the presence of local Operation Pipeline activities. In state after state, 

in all regions of the country, high levels of racial profiling consistenly reflect Pipeline tactics and operations. In New Jersey, Maryland, North Carolina, Florida, Oklahoma, Colorado, Utah, California, and elsewhere, the connection is too clear to be 

ignored. 

The DEA now claims to have eschewed racial profiling, and its official position 

is that ‘‘the best profile is no profile.’’ This is surely a step in the right direction. 

Yet without data the DEA is blind as to how its training is really being used. And 

without data, the DEA cannot determine how tens of thousands of officers who were 

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trained in Pipeline techniques in years and decades past—when racial profiling was 

accepted and even advocated by the DEA—are behaving on the highways today. 

PUTTING AN END TO RACIAL PROFILING

Racial profiling is a deeply imbedded problem whose roots lie in the complex, racist stereotypes and assumptions that infect our entire society. Eradicating it will 

therefore require a determined and long-term effort. Nevertheless, a number of 

straightforward and simple steps that can and must be taken immediately will 

make an enormous difference in that effort. 

PASS FEDERAL LEGISLATION

First and foremost, federal legislation must be passed that clearly identifies and 

outlaws racial profiling in every context, by every agency and police department, in 

every state and locality in the nation. The ACLU vigorously advocates passage of 

the End Racial Profiling Act. This bipartisan bill contains the essential elements 

that would require all police departments and federal agencies to stop engaging in 

racial profiling and to implement measures to help prevent the use of profiling. ;It 

requires police departments to collect data on all types of law enforcement encounters and requires the attorney general to report regularly to Congress on these data. 

BAN PRETEXT STOPS AND CONSENT SEARCHES

Pretext stops and consent searches, as explained above, are the mechanisms that 

make possible and perpetuate racial profiling. These mechanisms allow police to 

stop and search people and vehicles despite a lack of evidence of criminal activity 

or illegal substances. Because these practices give individual police officers the 

power to base stops and searches on hunches, assumptions, and baseless suspicion, 

they are responsible-for the disproportionate stopping and searching of AfricanAmericans and Latinos. 

PASS LEGISLATION IN EVERY STATE. 

It is heartening that, in the two years the ACLU issued our report on racial 

profiling, nine states have enacted legislation addressing racial profiling through 

data collection. Legislation which explicitly outlaws racial profiling and requires 

data collection and reporting should be passed in every state in America. 

END RACIAL PROFILING IN JUSTICE DEPARTMENT DRUG INTERDICTION PROGRAMS. 

The U.S. Department of Justice claims that Operation Pipeline and other drug 

interdiction programs no longer teach officers to rely on racial profiling in an effort 

to identify drug-related criminals. 

This is an encouraging development, but it is not enough. The Justice Department 

should require all its agencies to collect and make public data on traffic stops and 

searches, as well as searches in airports and other non-highway contexts. Funding 

should be withheld from agencies that fail to conduct data collection programs and 

that do not implement programs aimed at eliminating racial profiling. 

ENCOURAGE DATA COLLECTION BY EVERY MAJOR CITY. 

Many cities and localities across the country have voluntarily implemented data 

collection programs. We applaud these police departments and call on every police 

agency in the nation, especially those in major cities, to undertake data comprehensive, ongoing data collection efforts. 

Racial profiling is the most recent manifestation of the racism and segregation 

that have plagued our nation since its founding. The fight to end it is the most important civil rights struggle of our time. We urge Members of Congress not to miss 

the opportunity to take part in this historic struggle. Please vote to end racial 

profiling in America. 

For additional copies of this report, please contict the ACLU’s Washington National Office:

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Statement of Karen Murphy-Smith, Angela Davis Cop Watch and the 

Campaign Against Racial Profiling, Milwaukee, Wisconsin 

Hello, I’m Karen Murphy-Smith, a human rights/prison reform public policy activist, and head of the Milwaukee based Angela Davis Cop Watch and the Campaign 

Against Racial Profiling (CARP) organization. 

The Angela Davis Cop Watch and Campaign Against Racial Profiling is a citizen 

action group dedicated to raising public awareness and ending racial profiling. Racial profiling is any police initiated action that relies upon the race, ethnicity, or national origin of an individual rather than behavior of that individual, or information 

that leads the police to a particular individual who has been identified as being engaged or having been engaged in criminal activity. 

We are comprised of citizens who believe that fighting crime is of the highest priority as long as it is done without violating citizen’s fundamental rights and further 

eroding the public’s confidence in law enforcement. We differ from other cop watch 

models where members take to the street with police/citizen interaction. Instead, 

we’ve adopted a research and development model that affords us the opportunity to 

lobby for reform and law enforcement accountability through the legislative process. 

(For further information visit ADCopwatch@againstthewalls.org) 

Fortwo years our organizations have led the charge to end all forms of racial 

profiling in Milwaukee and throughout Wisconsin in the areas of.

Driving While Black or Brown (DWB)—the practice of stopping, searching, 

and or detaining a motorist based on his or her race, ethnicity, gender, or 

station-in-life. 

Walking While Black or Brown (WWB)—the practice of stopping, searching, 

or detaining a pedestrian based on his or her race, ethnicity, gender, or station-in-life. 

Running While Black or Brown (WWB)—the practice of stopping, searching, 

detaining, and or arresting a pedestrian who is in a ‘‘high crime area’’, because he or she broke into an unprovoked run at the sight of law enforcement of officials. 

Shopping While Black or Brown (SWB)—the practice of detaining and 

searching a commuter based on his or her race, ethnicity, gender, or station-in-life. 

Flying While Black or Brown (FWB)—the practice of detaining and searching a commuter based on his or her race, ethnicity, gender, or station-inlife. 

Hailing a Cab While Black or Brown (HACWB)—the practice of avoiding 

to stop or acknowledge individuals of a specified race, ethnicity, gender, or 

station-in-life who hail a cab, based on a profile of descriptive attire and 

stereotypes.

According to social scientist, Henry Lefebvre, ‘‘a revolution takes place when and 

only when, in such a society, people can no longer lead everyday lives. . .’’ Such is 

the case with scores of African-Americans and other minorities—including prominent athletes, members of Congress, actors, lawyers, policemen, clergy and business 

leaders who have experienced the humiliation of being stopped on our nation’s roads 

for no other reason than the alleged traffic offense referred to as ‘‘DWB’’. In November of ‘99’ we successfully lobbied the City of Milwaukee Common Council and Milwaukee Mayor John Norquist to sign into law a bill that requires the 

Milwaukee Police Department (MPD) to extract racial data from police records for 

quarterly publication by our citizen’s review panel the Fire & Police Commission.

In Milwaukee Blacks and Minorities received three of every four municipal 

tickets. Blacks and Minorities were 38% of the population, but received 75% 

of non-traffic and 70% of traffic citations from Oct. 25, 1998 through Oct. 

25, I999.

A recent Milwaukee Journal Sentinel Newspaper analysis of 147,000 ‘‘quality of 

life’’ municipal citations issued between October 25, 1998 and another 122,913 ‘‘Zero 

tolerance’’ and ‘‘area specific policing’’ citations revealed that these strategies have 

‘‘had a disparate impact on the poor and on blacks because most tickets—even for 

violations like jaywalking and speeding—are given to ethnic minorities in low-income, higher crime neighborhoods.’’ (Source: Milwaukee Journal Sentinel ‘‘Policing 

or Profiling?’’, by Dave Umhoefer, 6/18/2000.) 

On March 6, 2001 Governor Scott McCallum issued Executive Order No. 1 ‘‘Relating to the Findings of the Governor’s Task Force on Racial Profiling.’’ Executive 

Order No. 1 requires all law enforcement agencies in the State of Wisconsin to:

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1) Enact a policy prohibiting the practice of racial profiling. 

2) Implement the recommendations authored by the Governors Task Force on Racial Profiling without delay. 

3) Identify the means necessary to implement the recommendations in cooperation 

with their communities.

The Task Force’s mission was to study whether and to what extent there exists 

a pattern and practice of law enforcement stop based on racial profiles; to determine 

and examine public perceptions on this issue; to collect and analyze data; and to 

explore solutions and make recommendations to the Governor and other appropriate 

entitles. The task force chaired by Judge Maxine Aldridge White was comprised of 

law enforcement officials, the defense bar, state legislators and community leaders 

who found that racial profiling erodes the public’s confidence in law enforcement 

that racial profiling is a nationwide issue; that there is anecdotal evidence that racial profiling occurs in Wisconsin; and that without emprircal data we will be unable 

to determine the extent of the racial profiling problem in Wisconsin. 

We’re currently corresponding with law enforcement agencies throughout the 

State In order to secure copies of policies prohibiting the practice of radial profiling. 

And will hold a news conference in the near future publishing our findings. 

We also stand with and join our own—Wisconsin Senator Russ Feingold and 

Michigan Representative John Conyers in doing the right thing supporting (S. 989 

and H.R. 2074). We can only now pray that president George W. Bush will follow 

suit.

Statement of Kabzuag Vaj, Co-Founder of Asian Emancipation Project, 

fMadison, WI 

POLICE PROFILING IN (HMONG) SOUTHEAST ASIAN COMMUNITIES

The recent attention to racial profiling has increased the awareness of the unconstitutional practice of law enforcement officers profiling, targeting, and harassing 

people of color, specifically, African Americans. Throughout the United States, people of color who are stopped and ticketed by police without justification are filing 

class action lawsuits, seeking to represent other people of color who alleged that 

they were also stopped on the basis of their racial/ethnic background. Although, 

many national and local agencies are working hard to eliminate and protect victims 

of police profiling, the focus is mainly on the African American community. 

Police profiling is not partial to only African American communities. Today, in 

Madison, WI, the color of your skin makes you more likely to be stopped, searched, 

arrested and imprisoned. Wisconsin has been home to the one of the largest Southeast Asian refugee populations for over three decades. Currently, there are approximately, 49,000 Southeast Asians in Wisconsin, and as the population grows many 

new challenges arise. Traditionally, Southeast Asians have a great deal of respect 

for authority figures, this makes it hard for them to believe that officers of the law 

would have any reasons to harass their community, therefore, it is difficult for the 

elders to understand and acknowledge police harassment and profiling. One of the 

most controversial issues within the Southeast Asian community is the incarceration and police profiling of our young men and women. 

An increase in police contact with the Southeast Asian community is not a result 

of an increase in gang activities and drug trafficking by community members. 

Myths, such as this one, only aim to further disempower and delegitimize Southeast 

Asians who are profiled on a consistent and systematic basis, and to justify law enforcement officers’ unequal implementation of the law for people of color. The reality 

is that many of these unnecessary and inappropriate encounters occur because of 

police profiling. Studies have shown that there is no correlation between race and 

likelihood to commit a crime. In other words, people break the law roughly in proportion to their population. 

Many Southeast Asians profiled by police officers have been harassed from a very 

young age, thus, they do not have the adequate resources and knowledge to defend 

themselves from police officers who abuse their power in an attempt to control the 

community they should be serving and protecting. Racial Profiling is systematically 

destroying the foundation of many communities of color, the destruction of the family unit, because of disproportionate incarceration rates of men of color and rising 

incarceration rates of women of color, causes fragmented families, single parent 

household, and unnecessary financial burden. The cultural, educational, and ecoVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00090 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
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nomic ramifications of racial profiling in Southeast Asian communities are 

devasting. Racial profiling of Southeast 

Asian’s result in arrest, conviction, and incarceration, which in return criminalizes the community, disrupts family unity and creates lost of face, mistrust, tension 

and violence between family members. In addition, the Southeast Asian community 

must deal with immigration issues, and face deportation back to countries their 

families fled, as refugees, three decades ago, in fear of persecution. According to The 

Southeast Asia resource Action Center (SEARAC), a national civil rights organization committed to the advancement of Southeast Asians, as of February 21, about 

one-third of all long-term detainees were from Southeast Asia. 

For example, a Hmong teen who is constantly profiled by police will be viewed 

as a criminal in his community, and bring his family humiliation and lost of respect 

and face. His father in response will put demands on the mother, who is responsible 

for the up brining of the child, in reaction to that, the mother will pressure the 

child. To avoid public criticizism and humiliation, many families resort to violence. 

In many instances, the father become depress and suicidal because he is unable to 

control the situation. The challenges in dealing with racial profiling in Southeast 

Asian communities are complex, therefore, without further resource and education, 

the consequences of racial profiling has contributed to many social, economic, familial and emotional problems. 

1. TESTIMONY BY C. VANG (INTERVIEWED APRIL 2001)

C. Vang is 23 years old and has lived in Madison, WI all his life. 

His first encounter with the Madison police department occurred in 1990, when 

he was 12 years old. While walking home from school, he was stopped and searched 

by an officer who alleged that C. Vang had stolen something from a nearby store. 

After searching C. Vang and finding nothing, the officer let him go, and apologized 

for misidentifying him for someone else. C. Vang and his family did not report this 

to the police department or file a compliant. C. Vang’s family did not know that they 

could report this incident and they believed the police department would not do anything about it. 

In 1992, at age 14, C. Vang and his friends were once again, profiled by the police 

department. While driving in Madison, C. Vang and 2 of his Laotian friends were 

ordered by five to eight police cars to pull over. Upon parking on the side, eight to 

ten officers surrounded the car with guns pointed at the teens. By gunpoint, the 

teens were ordered to step out of the car and lay flat on the ground, while the other 

officers searched the car. When the teens asked why they were being stopped and 

held at gunpoint, the officers replied that they were looking for a gun. After searching the car, only a wheel lock club was found (read: no gun was found). Once again, 

C. Vang and his friends did not report the incident to the police department or file 

a compliant against the officers. 

From 1981 to 1996, C. Yang lived in a low-income neighborhood, where there were 

community police and security guards policing the community 24 hours a day 7 days 

a week. In the years when he lived in this community, C. Vang was stopped and 

questioned by officers on several other occasions; officers would stop him just for 

looking their way or even just smiling at them. They said his smile was intimidating 

and his look was insulting. 

C. Vang has been threatened by Madison police officers on numerous occasions. 

While visiting his older brother, C. Vang was stopped by an officer and asked what 

he was doing in the neighborhood. Then the officer told C. Vang that the police department had their eyes on C. Vang and that one day they would catch him doing 

something wrong. In April of 2001, while visiting his older brother again, a police 

officer approached C. Vang and told him that he was no longer permitted to visit 

his brother, because the department had barred him from entering that community. 

When C. Vang asked why, the officer said that they know C. Vang had committed 

vandalism in that community and therefore, was no longer allowed to enter the community. Although, C. Vang was accused of a crime and prohibited from entering 

that community there was no ticket given and no arrests, just more threats. No 

other reasons were given for outlawing C. Vang from visiting his older brother. C. 

Vang has not filed a compliant against the department yet. 

2. TESTIMONY BY J. VANG (INTERVIEWED APRIL 2001)

J. Vang is 21 years old and has lived in Madison, WI all his life. 

In April 2001, J. Vang, his brother, and two Hmong friends went to Mc Donald’s 

for lunch and ended up with two disorderly conduct tickets. After being mistreated 

and disrespected by the manager at the local fast food over a request for more barbecue sauce, J. Vang and his friends ate their meals in the restaurant, while the 

88

manager called the police. Instead of investigating and speaking to both parties, the 

police officers order the Hmong men to leave the restaurant and cited two of the 

young men with disorderly conduct tickets. The manager was not ticketed, and no 

complaints were filed. 

3. TESTIMONY BY F. XIONG (INTERVIEWED APRIL 2001)

F. Xiong is 21 years old and has lived in Madison for 10 years. 

Since November 2000 to April 2001 F. Xiong has been stopped four times while 

driving by police officers. F. Xiong is stopped and questioned about the same issues: 

the color of his headlights, tail lights, and break lights and how his lights are either 

too pearl white, too yellow, too bright, or not bright enough. All four times, police 

officers asked all the people in the car to provide identification, and conducted background checks on all of them. Police officers never cited F. Xiong with a ticket, but 

aimlessly threatened and warned him. No complaints were filed. 

In April 2001, a neighborhood officer told F. Xiong he could not stand his car in 

a prohibited area, although there were no visible markers against standing a vehicle. F. Xiong questioned the officers, and they in turn threatened to take F. Xiong 

downtown for disorderly conduct. At the same time, without his permission, the officer and his partner attempted to open F. Xiong’s car door to search his car. F. Xiong 

told them that he did not consent to the search and that the officers had no reasons 

and grounds to search his car. The officers left after several other community members verbally agreed with F. Xiong. No ticket was given, no reports or complaints 

were filed. 

4. TESTIMONY BY K. VUE (INTERVIEWED MARCH 2001)

K. Vue is 24 years old and has lived in Madison for 10 years. 

In August 2000, while leaving for home from an Asian party, K. Vue and a friend 

was stopped and questioned by police officers about a crime in which 10 to 15 Asian 

men attacked an African man. After examining K. Vue and his friend the police officers agreed to let the two men go. While walking back to their car, several more 

police officers and the victim identified K. Vue and his friend as the perpetrators 

of the crime. K. Vue, his friend, and another Asian man were the first Asian men 

spotted on the streets, and were all arrested and charged with a hate crime against 

the African man. At the trial, however, the key witness confessed that he was not 

sure if these were the Asian men involved, and that the only thing he was sure 

about is that all Asians dressed like ‘‘gangsters.’’ The victim, himself, admitted outside the courtroom that he was also unsure if these were the men. Regardless of 

the lack of evidence, all three Hmong men were charged with the hate crime and 

sentenced.; The Hmong men have filed no complaints. 

After this incident, a number of other Asian men, regardless of their ethnicities, 

were stopped and questioned about their possible involvement in the attack of the 

African man. 

Several weeks after the attack, campus officers stopped a Taiwanese American 

man at the University of Wisconsin-Madison to question him about the incident because the small band-aid on his head, which he was using to cover a pimple, caused 

suspicion. 

5. TESTIMONY BY T. VANG (INTERVIEWED APRIL 2001)

T. Vang is 18 years old and was born and raised in Madison, WI 

T. Vang was stopped outside of her home by two police officers that told her they 

had their eyes on her, and that one day they will arrest her. They also asked her 

what gang she belonged too. She has never been arrested but continues to get harassed by community officers daily. She has not filed any complaints against the officers. 

6. TESTIMONY BY X. VANG (INTERVIEWED APRIL 2001)

X. Vang is 22 years old and has lived in Madison for 20 years. 

Since X. Vang was 14 years old, police officers, neighborhood officers and neighborhood security guards have profiled him. They have all harassed him in an attempt to force a confession regarding his ‘‘gang affiliation.’’ X. Vang is not involved 

in any Asian gangs. In fact, to his knowledge, there has never been an Asian gang 

in Madison, Wl. X. Vang has been stopped by police officers on many occasions. 

In the summer of 2000, while walking around in his neighborhood, a police officer 

stopped X. Vang and requested to see his identification card. X. Vang refused. At 

that point, the office cited X. Vang for disorderly conduct and obstruction of a police 

89

officer. Since the summer of 2000, X. Vang has received two disorderly conduct citations and many threats of being taken to jail from different police officers. 

7. TESTIMONY BY L. YANG (INTERVIEWED NOVEMBER 2000)

L. Yang is 25 years old and lives in Madison, WI 

In the summer of 2000, while playing volleyball at a public park, a group of 12 

to 15 Cambodian, Laotian and Hmong youth were asked to provide identification by 

a police officer who justified his request by stating that the grass at the park was 

dying because Southeast Asian people had over-used the park. When one of the 

young Hmong men refused to do so, the officer threatened him. Many of the other 

young men showed the officer their state identification cards because they feared 

what could happen to them if they did not. L. Yang did present his identification 

card to the officer. 

When asked why the youth did not report this to the police department, they said 

they did not know who to report it to and they believed that if they did report the 

incident nothing would happen. L. Yang also testified that after that incident, on 

many different occasions, officers would drive around the park to observe the youth 

play volleyball. 

8. TESTIMONY BY F. VANG (INTERVIEWED 1997)

F. Vang is 25 years old and has lived in Madison, WI all his life. 

In the summer of 1992 encounters with the police became a daily routine for F. 

Vang and his friends. One day, while standing in the parking, a few feet away from 

his home, F. Vang and his friends were approached by several undercover police officers. The officers asked F. Vang, who was at the time only 17, what gang he was 

affiliated with and why he was standing in the parking lot. F. Vang walked away 

from the officers and refused to answer their insulting questions. As F. Vang walked 

on the sidewalk towards his older brother’s house, the officers asked him to stop 

so they could search him. F. Vang’s older brother saw the officers harassing his 

younger brother and asked the officers to stop. The undercover officers shouted at 

F. Vang’s older brother and told him to ‘‘shut up because he was nothing but an 

uneducated poor man and should stay out of their business.’’ The undercover officers 

wanted to search F. Vang for drugs and weapons, but without a warrant F. Vang’s 

older brother would not allow them to. No tickets were issues, no arrested were 

made and no reports were filed.

Article by Fox Butterfield, New York Times, July 30, 2001

f Police departments in cities across the nation are facing what some call a personnel crisis, with the number of recruits at record lows, an increasing number of 

experienced officers turning down promotions to sergeant or lieutenant and many 

talented senior officers declining offers to become police chiefs, executive recruiters 

and police officials say. 

Making the situation worse, in some cities a growing number of police officers are 

quitting for higher-paying jobs in suburban departments or private businesses. 

These problems have come at a time when crime is at its lowest levels since the 

late 1960’s and the police should be feeling good about themselves. But, the experts 

say, many officers from the lowest to the highest rank are questioning their occupation, tempted by higher pay in the private sector after a decade- long economic boom 

and discouraged by seemingly constant public and news media criticism about police 

brutality and racial profiling. 

John Diaz, an assistant police chief in Seattle, said the long hours and the politics 

involved in a chiefs job made the position unappealing to him. 

‘‘I would absolutely not take a job as a police chief,’’ said John Diaz, an assistant 

police chief in Seattle, who at 44 already has a good national reputation and is 

sought after by recruiters for a chief s post. 

‘‘The politics of being police chief have become so insane no one wants the job,’’

said Mr. Diaz, who is particularly attractive to recruiters because he is Hispanic. 

‘‘I work an 11-hour day, but our chief is here before me every day and doesn’t leave 

until I’m gone, and all he gets is attacked in the media all the time.’’

The malaise felt by those from potential police recruits to chiefs ‘‘is a major crisis 

all over the country,’’ said Cynthia Brown, the publisher of American Police Beat, 

the largest- circulation newspaper for law enforcement officers. 

90

The difficulties are illustrated in her publication. Until a year ago, Ms. Brown 

said, she had never run an advertisement from a police department looking for recruits, because police forces could still find all the applicants they needed in their 

own communities. But in the current issue, there are advertisements for police recruits from a dozen cities, including Portland, Ore., and Seattle, and smaller cities 

like Santa Cruz, Calif, and Sheridan, Wyo. 

There has been little public attention to the police departments’ troubles, but Jeremy Travis, a senior fellow at the Urban Institute and a former deputy police commissioner in New York City, said, ‘‘If this was a business, we’d be in a panic mode.’’ There are no nationwide statistics on the problem. But figures from several cities 

show the magnitude of the drop in applicants for the police examination, the first 

step in becoming a police officer. In Chicago last year, 5,263 people signed up for 

the exam, despite months of recruiting at college campuses, military bases and 

churches throughout the Midwest, said Cmdr. Bill Powers, the head of the Chicago 

police personnel division. That is down from 10,290 people who signed up in 1997 

and 36,211 applicants in 1991. Traditionally, only a tiny fraction of people who 

apply are eventually accepted, making a large applicant pool important. 

In New York City, more than 1,700 officers left the 41,000-member force last year 

through retirement or resignation, a third more than the year before. The retirement rate is expected to accelerate, with concerns about morale and pay taking 

their toll and with a large portion of the force soon to complete 20 years of service, 

when officers can retire with a full pension. 

The number of captains leaving the New York Police Department tripled in the 

2000 fiscal year from the year before, and over the next four years, more than half 

of the force’s 2,100 captains and lieutenants will be eligible to retire. 

While the number of people signing up to take the test to become New York City 

police officers rose modestly this year over last year, the overall number of applicants has dropped sharply in recent years. In 1996, 32,000 people signed up. This 

year, 13,136 did. 

In Los Angeles, where the police have been buffeted by scandals since the Rodney 

King beating in 1991, there were only 19 recruits in the police academy class in 

June, a record low, said Amira Smith, an officer in the employment opportunity development division. When Ms. Smith joined the force four years ago, there were 70 

recruits in her class, and not long before that there were 100 recruits per class. This 

month Los Angeles canceled the police academy because there were not enough recruits. 

In Seattle, the police department is having trouble finding officers to take the sergeants’ examination, and sergeants to take the exam for promotion to lieutenant. 

Only 86 officers took this year’s sergeants’ test, down from 134 in 1997, and only 

10 sergeants took this year’s exam for lieutenant, compared with 33 in 1997, department figures show. 

Many officers with seniority do not want to start over in a higher rank, risking 

having to work nights or weekends, officers say. And some sergeants do not want 

the promotion because lieutenants, unlike sergeants, do not get overtime pay. 

‘‘There has been a big change in the culture of policing in the past few years, as 

lifestyle becomes more important than the sense of public service,’’ said Carroll 

Buracker, the head of a management and consulting firm in Harrisonburg, Va., and 

a former police chief in Fairfax County, Va. Detectives in many police departments 

now work only from 8 a.m. to 4 p.m., Monday through Friday, Mr. Buracker said, 

and therefore are unavailable to contact a victim when a crime occurs in the 

evening or over the weekend. 

‘‘So why would a detective want to give up that work schedule when they have 

a family,’’ he asked, ‘‘in order to be a sergeant without seniority and face working 

nights and weekends?′′

To attract and retain officers, some police departments are resorting to even more 

radical changes in the work week that Mr. Buracker, among others, thinks undermine the goals of good policing. In Tacoma, Wash., all police officers work on Thursday, he said, so officers on a rotating basis can get six days off in a row, from Friday 

through Wednesday. The new mayor of Los Angeles, James K. Hahn, won the endorsement of the city’s police union by promising to institute a three-day work week, 

with 12-hour shifts. 

But if officers work only three days a week, Mr. Buracker said, they would often 

not be available to go to court, an essential duty in everything from settling traffic 

tickets to felony trials. And they might start making fewer arrests to avoid having 

to show up to testify, he said. 

Attrition is a growing problem from New York to Los Angeles. In Detroit, where 

the police department is under a federal investigation for charges that the police 

routinely violate citizens’ civil rights, 600 to 700 officers have resigned in the last 

91

five years, according to department figures, many to take better-paying jobs in suburban forces. In addition, more than 1,000 other officers have retired in the last five 

years, and 1,000 more are eligible to retire in the next two years, large proportion 

of Detroit’s 4,000-member department. 

Low pay is often a factor. In Detroit, the starting salary for a police officer is $28,865; in Houston, it is $26,000. 

In Miami, the police department has only 883 officers, well below its authorized 

strength of 1,045 officers. ‘‘Because of the economy, people are not really interested 

in law enforcement as a career,’’ said Sgt. David Ramras of the Miami police recruiting unit. ‘‘We are not getting people coming out of the military,’’ as police forces long did, 

Sergeant Ramras said. ‘‘It’s easier for them to get a job working with computers 

making a lot more money, with evenings and weekends off.’’ Sgt. John Rivera, the president of the Miami-Dade County Police Benevolent Association, offered another explanation. ‘‘This is increasingly becoming a more miserable job. by the day,’’ Sergeant Rivera said. It has not helped, he said, that the 

Miami police have been stung by accusations of abuse, corruption and cover-ups, 

and that the department is under investigation by federal prosecutors. 

Most officers are good people, he said, ‘‘so to risk your life for increasingly ungrateful people isn’t worth it.’’ The hardest part of the problem to quantify is the number of highly qualified senior police executives who are passing up offers to become police chiefs, and as a result, the number of cities that are having to settle for their second or third choice. 

Among cities that have had difficulty recently are Denver, Ann Arbor, Mich., Riverside, Calif, and Prescott Valley, Ariz., some recruiters and chiefs said. ‘‘We are down about 35 percent in the number of qualified candidates when we 

do chief searches now,’’ said Jerry Oldani, president of the Oldani Group, a search 

firm in Bellevue, Wash. ‘‘Up until five years ago, people broke their necks to be big city chiefs,’’ Mr. Oldani 

said. ‘‘But now there are a lot of senior police officials who just don’t want to be 

chief.’’ There are several reasons for this, said Chuck Wexler, the executive director of 

the Police Executive Research Forum, an organization of police executives that does 

recruiting and training. Pay for police chiefs is relatively low—from $70,000 to 

$150,000—so low that some officers or sergeants, with overtime, earn more than 

their bosses, Mr. Wexler said. 

Chiefs usually cannot take their retirement benefits with them from job to job, 

unlike many corporate executives, and they face hardships in relocating since cities 

do not offer the same help businesses do for their senior officers, Mr. Wexler said. 

Then there is the difficulty of going through a public examination by the local city 

council, or civilian advisory bodies, so an applicant’s whole life can suddenly appear 

in the news media. 

Moreover, Mr. Wexler said, ‘‘the expectations for chiefs are higher than ever, because of the new belief that chiefs can do something about reducing crime.’’

So for a mayor, picking a police chief ‘‘has become like drafting a star quarterback,’’ Mr. Wexler said, ‘‘but with these expectations, there is danger, because you 

can’t expect to get those crime drops forever.’’

‘‘When people add up all these costs, it often isn’t worth it to take a chiefs job,’’

Mr. Wexler said. 

In Seattle last year, when the city was looking for a new chief in the aftermath 

of the violent demonstrations at the World Trade Organization meeting, none of the 

assistant chiefs applied. 

Mr. Diaz was one of those assistant chiefs. ‘‘It’s really odd, because the usual 

route is to want to get promoted and become the head,’’ he said, ‘‘but being chief 

is a thankless job.’’

The eventual choice was Gil Kerlikowske, a former police commissioner in Buffalo. 

Last Sunday, Chief Kerlikowske went out for a run from police headquarters and 

came across a crowd surrounding a woman who had passed out—from a heroin overdose, it turned out. The chief, in his jogging gear, stopped to give her mouth-tomouth resuscitation, then, when she began to breathe again, took her to the hospital. Later, Chief Kerlikowske had to go to the hospital himself, for hepatitis B 

shots. 

But on the evening news, Mr. Oldani said, the chiefs good deed merited just a 

few seconds. The major item, he said, was about the police chase of a stolen car, 

which struck a pedestrian, and the criticism that the police were to blame for the 

injured pedestrian. 

‘‘It’s a good example of what’s wrong,’’ Mr. Oldani said. ‘‘He was being a good cop, 

and that just got lost.’’

f92

Article by Roger Clegg, National Review, June 29, 2001 

Last week, the Washington Post ran a front page, above-the-fold story, headlined 

‘‘Discrimination’s Lingering Sting/Minorities Tell of Profiling, Other Bias.’’ The story 

reports the results of a survey by the Post, the Henry J. Kaiser Family Foundation, 

and Harvard University. The gist of the survey is that in a wide variety of areas—

police stops, employment, physical assaults, service at restaurants and stores, etc.—

blacks are more likely to report that they have been discriminated against because 

of their race than whites are, with Hispanics and Asians falling in between. 

But despite the stop-the-presses headline treatment, there is much less to the 

study than meets the eye, and in fact its findings do little to support the liberal 

agenda. 

The basic limitation with the study is that it is not reporting the ‘‘sting’’ of actual 

discrimination at all, but only whether people think they have been discriminated 

against. On the second page of the story, on page A16, in the story’s seventh paragraph, it is obliquely acknowledged that the study is measuring only people’s perceptions and not necessarily reality, and it is not until the 24th paragraph that the 

Post story says outright, ‘‘An honest error or an unintended slight may be misconstrued as an act of racial intolerance.’’

Moreover, there is a half-empty versus half-full way of looking at the data. For 

the study’s overarching question, ‘‘During the last 10 years, have you experienced 

discrimination because of your racial or ethnic background, or not?,’’ more than half53 percent of African Americans said no. That is surely an astounding indicator of 

progress. Less than a generation after Martin Luther King Jr.’s ‘‘I have a dream’’

speech and formal, de jure segregation, more than half of black Americans say they 

are not being discriminated against at all. 

For Hispanics and Asian, the figures are even better: Six in ten say they have 

suffered no discrimination in the past ten years (for whites, the number is eight in 

ten). 

The study also indicates that white-on-black discrimination is not the only kind. 

For instance, 35 percent of African Americans say they have lost out on a job or 

promotion because of their race, versus only 10 percent of whites. One way to look 

at this is that-assuming that the figures reflect reality and that the each individual 

who answered positively has suffered the same number of hiring/promotion denials—if you are black, you are three-and-a-half times more likely to suffer workplace 

discrimination than if you are white. 

But, on the other hand, there are six times as many whites as blacks in the 

United States. And that means that there are 1.7 times as many instances in which 

whites are discriminated against in the workplace as instances where blacks are the 

victims. In other words, the study could be cited to support the conclusion that ‘‘reverse’’ discrimination is a much more widespread problem than ‘‘old-fashioned’’ discrimination. 

The numbers are even more sobering when the question is, ‘‘Have you ever been 

physically threatened or attacked because of your race or ethnic background?’’ Seventeen percent of blacks said they had, almost double the number of whites (9 percent). So blacks are twice as likely to report that they have been physically threatened or attacked but there are more than three times as many racial assaults on 

whites as on blacks reported. 

Two days after it published the results of this survey, the Post reported on a 

study by University of Michigan psychologist Lilia Cortina. This study, which was 

not focusing on race or ethnicity, surveyed 1,100 federal court employees. It found 

that 71 percent of them believed they had been insulted, ignored, or otherwise 

dissed by co-workers or superiors during the past five years. 

The point is that there is a lot of perceived incivility in society. There is also much 

disappointment in life. When bad things happen, there is a universal human tendency to blame someone else. There is also a need to ascribe some motive to the 

wrongdoer. 

The original Post article quotes Lawrence Bobo, a professor of Afro-American 

studies and sociology at Harvard, who asserts that the study reflects ‘‘the steady 

occurrence of slights and put-downs you know in your gut are tied to race but that 

rarely take the form of blatant racism. No one uses the N-word. There is not a flat 

denial of service. It is insidious, recurrent, lesser treatment.’’

The trouble is, the subtler the slights, the greater the likelihood that they may 

not be slights, or at least racial slights, at all. The media do minorities no favor 

by suggesting that discrimination is more widespread than it really is. 

93

There is no doubt that bigotry still exists in our country and I have no doubt that 

African Americans suffer from it the most. But it is also undeniable that there is 

less of it than there used to be, and that black bigotry against whites is also a problem. The study helps document all this, but none of this is news, and so the study 

is not very helpful even after its limitations are recognized. 

The tougher questions are: (1) Why does bigotry still exist?; and (2) What is to 

be done about it? The study offers no guidance on these, more important questions. 

One suspects that the powers that be at Harvard and the Washington Post believe 

in their hearts that white parents teach their children to be bigots and that the way 

to solve the problem is by the use of racial preferences. The fact of the matter, however, is that prejudice nowadays is more likely to have its origin and certainly its 

reinforcement in the easily observable and undeniable pathologies of the inner 

city—no justification for bigotry, but a fact that has to be grappled with—and that 

racial preferences make race relations worse, not better, by confirming stereotypes, 

fostering white resentment, and feeding a victim mentality among African Americans.

Article by David Cole and John Lamberth, New York Times, May 13, 2001 

fTHE FALLACY OF RACIAL PROFILING

Byline: By David Cole and John Lamberth; David Cole, a professor at Georgetown 

University Law Center, is author of ′′No Equal Justice: Race and Class in the American Criminal Justice System.′′ John Lamberth is associate professor of psychology 

at Temple University. 

BODY

It is no longer news that racial profiling occurs; study after study over the past 

five years has confirmed that police disproportionately stop and search minorities. 

What is news, but has received virtually no attention, is that the studies also show 

that even on its own terms, racial profiling doesn’t work. 

Those who defend the police argue that racial and ethnic disparities reflect not 

discrimination but higher rates of offenses among minorities. Nationwide, blacks are 

13 times more likely to be sent to state prisons for drug convictions than are whites, 

so it would seem rational for police to assume that all other things being equal, a 

black driver is more likely than a white driver to be carrying drugs. 

But the racial profiling studies uniformly show that this widely shared assumption is false. Police stops yield no significant difference in so-called hit rates—percentages of searches that find evidence of lawbreaking—for minorities and whites. 

If blacks are carrying drugs more often than whites, police should find drugs on the 

blacks they stop more often than on the whites they stop. But they don’t. 

In Maryland, for example, 73 percent of those stopped and searched on a section 

of Interstate 95 were black, yet state police reported that equal percentages of the 

whites and blacks who were searched, statewide, had drugs or other contraband. In 

New Jersey, where police have admitted to racial profiling, searches in 2000 conducted with the subjects’ consent yielded contraband, mostly drugs, on 25 percent 

of whites, 13 percent of blacks and only 5 percent of Latinos. 

A study of stop-and-frisk practices in New York City in 1998 and 1999 found that 

while police disproportionately stopped young black men, the hit rates were actually 

marginally higher for whites than for blacks or Latinos. And while 43 percent of 

those searched at airports by the Customs Service in 1998 were black or Latino, illegal materials were found on 6.7 percent of whites, 6.3 percent of blacks and 2.8 percent of Latinos. 

Other studies corroborate that drug use and dealing are equal opportunity offenses. The Public Health Service reports, based on anonymous surveys, that blacks, 

at 13 percent of the population, account for 15 percent of illegal drug users. Hispanics are 11 percent of the population and 8 percent of illegal drug users, and 

whites are more than 70 percent in both categories. A National Institute of Justice 

study found that most users report getting their drugs from dealers of their own 

racial or ethnic background; so dealing rates are likely to track user rates. These 

figures suggest that race and ethnicity are simply not useful criteria for suspicion. 

The Customs Service’s experience is illustrative. In late 1998, the service adopted 

reforms designed to eliminate racial and gender bias in its searches. In 2000, it conducted 61 percent fewer searches than in 1999, but seizures of cocaine, heroin and 

Ecstasy all increased. From 1998 to 2000, hit rates for whites and blacks increased 

94

by about 125 percent, from less than 7 percent to 15.8 percent, while hit rates for 

Latinos increased more than fourfold, from 2.8 percent to 13.1 percent. 

Perhaps most important is that every year the vast majority of both blacks and 

whites are not arrested for anything. A generalization linking race or ethnicity to 

crime will therefore inevitably sweep in many innocent people. And police will miss 

guilty people who don’t fit their stereotypes. As cities from New York to Cincinnati 

have seen, reliance on race corrodes the legitimacy of the criminal justice system 

by reneging on its promise of equality. But that’s old news. The new news is that 

racial profiling just doesn

Article by John Derbyshire, National Review, February 19, 2001 

’t work.

fIN DEFENSE OF RACIAL PROFILING

‘‘Racial Profiling’’ has become one of the shibboleths of our time. Anyone who 

wants a public career in the United States must place himself on record as being 

against it. Thus, ex-senator John Ashcroft, on the eve of his confirmation hearings: 

‘‘It’s wrong, inappropriate, shouldn’t be done:’’ During the vice-presidential debate 

last October, moderator Bernard Shaw invited the candidates to imagine themselves 

black victims of racial profiling. Both trade the required ritual protestations of outrage. Lieberman: ‘‘I have a few African-American friends who have gone through 

this horror, and you know, it makes me want to kind of hit the wall, because it is 

such an assault on their humanity and their citizenship.’’ Cheney: ‘‘It’s the sense 

of anger and frustration and rage that would go with knowing that the only reason 

you were stopped . . . was because of the color of your skin . . .’’ In the strange, 

rather depressing, pattern these things always follow nowadays, the American public has speedily swung into line behind the Pied Pipers: Gallup reports that 81 percent of the public disapproves of racial profiling. 

All of which represents an extraordinary level of awareness of, and hostility to, 

and even passion against (‘‘hit the wall . . . ’’) a practice that, up to shout five years 

ago, practically nobody had heard of. It is, in fact, instructive to begin by looking 

at the history of this shibboleth. 

To people who follow politics, the term ‘‘racial profiling’’ probably first registered 

when AI Gore debated Bill Bradley at New York’s Apollo Theatre in February 2000. 

Here is Bradley, speaking of the 1999 shooting of African immigrant Amadou Diallo 

by New York City police: ‘‘I . . . think it reflects . . . racial profiling that seeps into 

the mind of someone so that he sees a wallet in the hand of a white man as a wallet, but a wallet in the hand of a black man as a gun. And we-we have to change 

that. I would issue an executive order that would eliminate racial profiling at the 

federal level.’’

Nobody was unkind enough to ask Sen. Bradley how an executive order would 

change what a policeman sees in a dark lobby in a dangerous neighborhood at night. 

Nor was anyone so tactless as to ask him about the case of LaTanya Haggerty, shot 

dead in June 1999 by a Chicago policewoman who mistook her cell phone for a 

handgun. The policewoman was, like Ms. Haggerty, black. 

A1 Gore, in that debate at the Apollo, did successfully, and famously, ambush 

Bradley by remarking that: ‘‘You know, racial profiling practically began in New 

Jersey, Senator Bradley’’ In true Clinton-Gore fashion, this is not true, but it is sort 

of true. ‘‘Racial profiling’’ the thing has been around for as long as police work, and 

is practiced everywhere. ‘‘Racial profiling’’ the term did indeed have its origins on 

the New Jersey Turnpike in the early 1990s. The reason for the prominence of this 

rather unappealing stretch of expressway in the history of the phenomenon is simple: The turnpike is the main conduit for the shipment of illegal drugs and other 

contraband to the great criminal marts of the Northeast. 

The career of the term ‘‘racial profiling’’ seems to have begun in 1994, but did not 

really take off until April 1998, when two white New Jersey state troopers pulled 

over a van for speeding. As they approached the van from behind, it suddenly reversed towards them. The troopers fired eleven shots from their handguns, wounding three of the van’s four occupants, who were all black or Hispanic. The troopers, 

James Kenna and John Hogan, subsequently became poster boys for the ‘‘racial 

profiling’’ lobbies, facing the same indignities, though so far with less serious consequences, as were endured by the Los Angeles policemen in the Rodney King case: 

endless investigations, double jeopardy, and so on. 

And a shibboleth was born. News-media databases list only a scattering of instances of the term ‘‘racial profiling’’ from 1994 to 1998. In that latter year, the 

95

number hit double digits, and thereafter rose quickly into the hundreds and thousands. Now we all know shout it, and we are, of course, all against it. 

Well, not quite all. American courts-including (see below) the U.S. Supreme 

Court-are not against it. Jurisprudence on the matter is pretty clear: So long as race 

is only one factor in a generalized approach to the questioning of suspects, it may 

be considered. And of course, pace Candidate Cheney, it always is only one factor. 

I have been unable to locate any statistics on the point, but 1 feel sure that elderly 

black women are stopped by the police much less often than are young white men. 

Even in the political sphere, where truth-telling and independent thinking on 

matters of race have long been liabilities, there are those who refuse to mouth the 

required pieties. Alan Keyes, when asked by Larry King if he would be angry with 

a police officer who pulled him over for being black, replied: ‘‘I was raised that everything I did represented my family, my race, and my country. I would be angry 

with the people giving me a bad reputation.’’

GOODBYE TO COMMON SENSE

Practically all law-enforcement professionals believe in the need for racial 

profiling- In an article on the topic for The New York Times Magazine in June 1999, 

Jeffrey Goldberg interviewed Bernard Parks, chief of the Los Angeles Police Department. Parks, who is black, asked rhetorically of racial profiling: ‘‘Should we play the 

percentages? . . . It’s common sense.’’ Note that date, though. This was pretty much 

the latest time at which it was possible for a public official to speak truthfully about 

racial profiling. Law-enforcement professionals were learning the importance of 

keeping their thoughts to themselves. Four months before the Goldberg piece saw 

print, New Jersey statepolice superintendent Carl Williams, in an interview, said 

that certain crimes were associated with certain ethnic groups, and that it was 

naive to think that race was not an issue in policing-both statements, of course, perfectly true. Supt. Williams was fired the same day by Gov. Christie Todd Whitman. 

Like other race issues in the U.S., racial profiling is a ‘‘tadpole,’’ with an enormous black head and a long but comparatively inconsequential brown, yellow, and 

red tail. While Hispanic, ‘‘Asian-American,’’ and other lesser groups have taken up 

the ‘‘racial profiling’’ chant with gusto, the crux of the matter is the resentment that 

black Americans feel toward the attentions of white policemen. 13y far die largest 

number of Americans angry about racial profiling are law-abiding black people who 

feel that they are stopped and questioned because the police regard all black people 

with undue suspicion. They feel that they are the victims of a negative stereotype. 

They are. Unfortunately, a negative stereotype can be correct, and even useful. 

I was surprised to find, when researching this article, that within the academic field 

of social psychology there is a large literature on stereotypes, and that much of it—

an entire school of thought-holds that stereotypes are essential life tools. On the scientific evidence, the primary function of stereotypes is what researchers call ‘‘the 

reality function.’’ That is, stereotypes are useful tools for dealing with the world. 

Confronted with a snake or a fawn, our immediate behavior is determined by generalized beliefs-stereotypes-about snakes and fawns. Stereotypes are, in fact, merely 

one aspect of the mind’s ability to make generalizations, without which science and 

mathematics, not to mention, as the snake/fawn example shows, much of everyday 

life, would be impossible. 

At some level, everybody knows this stuff, even the guardians of the ‘‘racial 

profiling’’ flame. Jesse Jackson famously, in 1993, confessed that: ‘‘There is nothing 

more painful to me at this stage in my life than to walk down the street and hear 

footsteps and start thinking about robbery, then look around and see somebody 

white and feel relieved.’’ Here is Sandra Seegars of the Washington, D.C., Taxicab 

Commission:

Late at night, if I saw young black men dressed in a slovenly way, I 

wouldn’t pick them up . . . And during the day, I’d think twice about it.

Pressed to define ‘‘slovenly;’’ Ms. Seegars elaborated thus: ‘‘A young black guy 

with his hat on backwards, shirttail hanging down longer than his coat, baggy pants 

down below his underwear; and unlaced tennis shoes.’’ Now there’s a stereotype for 

you! Ms. Seegars is, of course, black. 

Law-enforcement officials are simply employing the same stereotypes as you, me, 

Jesse, and Sandra, but taking the opposite course of action. What we seek to avoid, 

they pursue. They do this for reasons of simple efficiency. A policeman who concentrates a disproportionate amount of his limited time and resources on young 

black men is going to uncover far more crimes-and therefore be far more successful 

in his career than one who biases his attention toward, say, middle-aged Asian 

women. It is, as Chief Parks said, common sense. 

96

Similarly with the tail of the tadpole-racial-profiling issues that do not involve 

black people. China is known to have obtained a top-secret warhead design. Among 

those with clearance to work on that design are people from various kinds of national and racial background. Which ones should investigators concentrate on? The 

Swedes? The answer surely is: They should first check out anyone who has family 

or friends in China, who has made trips to China, or who has met with Chinese 

officials. This would include me, for example-my father-in-law is an official of the 

Chinese Communist Parry. Would I then have been ‘‘racially profiled’’? 

It is not very surprising to team that the main fruit of the ‘‘racial profiling’’

hysteria has been a decline in the efficiency of police work. In Philadelphia, a federal court order now requires police to fill out both sides of an 81⁄2-by-11 sheet on 

every citizen contact. Law-enforcement agencies nationwide are engaged in similar 

statistics-gathering exercises, under pressure from federal lawmakers like US. Rep. 

John Conyers, who has announced that he will introduce a bill to force police agencies to keep detailed information about traffic stops. (‘‘The struggle goes on,’’ declared Rep. Conyers. The struggle that is going on, it sometimes seems, is a struggle 

to prevent our police forces from accomplishing any useful work at all.) 

A policeman who concentrates a disproportionate amount of his time and resources 

on young black men is going to uncover far more crimes. 

The mountain of statistics that is being brought forth by all this panic does not, 

on the evidence so far, seem likely to shed much light on what is happening. The 

numbers have a way of leading off into infinite regresses of uncertainty. The city 

of San Jose, Calif., for example, discovered that, yes, the percentage of blacks being 

stopped was higher than their representation in the city’s population. Ah, but patrol 

cars were computer assigned to high-crime districts, which are mainly inhabited by 

minorities. So that over-representation might actually be an under-representation! 

But then, minorities have fewer cars . . . 

THE CORE ARGUMENTS

Notwithstanding the extreme difficulty of finding out what is actually happening, 

we can at least seek some moral and philosophical grounds on which to take a stand 

either for or against racial profiling. I am going to take it as a given that most readers of this article will be of a conservative inclination, and shall offer only those arguments likely to appeal to persons so inclined. If you seek arguments of other 

kinds, they are not hard to find—just pick up your newspaper or rum on your TV. 

Of arguments against racial profiling, probably the ones most persuasive to a conservative are the ones from libertarianism. Many of the stop-and-search cases that 

brought this matter into the headlines were part of the so-called war on drugs. The 

police procedures behind them were ratified by court decisions of the 1980s, themselves mostly responding to the rising tide of illegal narcotics. In US. vs. Montoya 

De Hernandez (1985) for example, Chief justice Rehnquist validated the detention 

of a suspected ‘‘balloon swallowing’’ drug courier until the material had passed 

through her system, by noting previous invasions upheld by the Court:

[First class mail may be opened without a warrant on less than probable 

cause . . . Automotive travelers may be stopped . . . near the border without individualized suspicion even if the stop is based largely on ethnicity 

...

(My italics.) The Chief Justice further noted that these incursions are in response 

to ‘‘the veritable national crisis in law enforcement caused by smuggling of illegal 

narcotics.’’

Many on the political Right feel that the war on drugs is at best misguided, at 

worst a moral and constitutional disaster. Yet it is naive to imagine that the ‘‘racial 

profiling’’ hubbub would go away, or even much diminish, if all state and federal 

drug laws were repealed tomorrow. Black and Hispanic Americans would still be 

committing crimes at rates higher than citizens of other races. The differential criminality of various ethnic groups is not only, or even mainly, located in drug crimes. 

In 1997, for example, blacks, who are 13 percent of the US. population, comprised 

35 percent of those arrested for embezzlement. (It is not generally appreciated that 

black Americans commit higher levels not only of ‘‘street crime,’’ but also of whitecollar crime.) 

We must confront our national hysteria about race, which causes large numbers of 

otherwise sane people to believe foolish things. 

Even without the drug war, diligent police officers would still, therefore, be correct 

to regard black and Hispanic citizens other factors duly considered-as more likely 

to be breaking the law. The Chinese government would still be trying to recruit 

97

spies exclusively from among Chinese-born Americans. (’The Chinese Communist 

Party is, in this respect, the keenest ‘‘racial profiler’’ of all.) The Amadou Diallo 

case-the police were looking for a rapist-would still have happened. 

The best non-libertarian argument against racial profiling is the one from equality 

before the law. This has been most cogently presented by Prof Randall Kennedy of 

Harvard. Kennedy concedes most of the points I have made. Yes, he says:

Statistics abundantly confirm that African Americans and particularly 

young black men-commit a dramatically disproportionate share of street 

crime in the United States. This is a sociological fact, not a figment of the 

media’s (or the police’s) racist imagination. In recent years, for example, 

victims of crime report blacks as the perpetrators in around 25 per cent of 

the violent crimes suffered, although blacks constitute only about twelve 

percent of the nation s population.

And yes, says Prof. Kennedy, outlawing racial profiling will reduce the efficiency 

of police work. Nonetheless, for constitutional and moral reasons we should outlaw 

the practice. If this places extra burdens on law enforcement, well, ‘‘racial equality, 

like all good things in life, costs something; it does not come for free.’’

There are two problems with this. The first is that Kennedy has minimized the 

black-white difference in criminality, and therefore that ‘‘cost.’’ I don’t know where 

his 25 percent comes from, or what ‘‘recent years’’ means, but I do know that in 

Department of justice figures for 1997, victims report 60 percent of robberies as having been committed by black persons. In that same year, a black American was 

eight times more likely than a non-black to commit homicide-and ‘‘non-black’’ here 

includes Hispanics, not broken out separately in these figures. A racial-profiling 

ban, under which police officers were required to stop and question suspects in precise proportion to their demographic representation (in what? the precinct population? the state population? the national population?), would lead to massive inefficiencies in police work. Which is to say, massive declines in the apprehension of 

criminals. 

The other problem is with the special status that Prof. Kennedy accords to race. 

Kennedy: ‘‘Racial distinctions are and should be different from other lines of social 

stratification.’’ Thus, if it can he shown, as it surely can, that state troopers stop 

young people more than old people, relative to young people’s numerical representation on the toad being patrolled, that is of no consequence. If they stop black people 

more than white people, on the same criterion, that is of large consequence. This, 

in spite of the fact that the categories ‘‘age’’ and ‘‘race’’ are both rather fuzzy (define 

‘‘young’’) and are both useful predictors of criminality. In spite of the fact, too, that 

the principle of equality before the law does not, and up to now has never been 

thought to, guarantee equal outcomes for any law enforcement process, only that a 

citizen who has come under reasonable suspicion will be treated fairly. 

It is on this special status accorded to race that, I believe, we have gone most 

seriously astray. I am willing, in fact, to say much more than this: In the matter 

of race, I think the Anglo Saxon world has taken leave of its senses. The campaign 

to ban racial profiling is, as I see it, a part of that large, broad-fronted assault on 

common sense that our over-educated, overlawyered society has been enduring for 

some forty years now, and whose roots are in a fanatical egalitarianism, a grim determination not to face up to the realities of group differences, a theological attachment to the doctrine that the sole and sufficient explanation for all such differences 

is ‘‘racism′′-which is to say, the malice and cruelty of white people-and a nursed and 

petted guilt towards the behavior of our ancestors. 

At present, Americans are drifting away from the concept of belonging to a single 

nation. I do not think this drift will be arrested until we can shed the idea that 

deference to the sensitivities of racial minorities—however overwrought those sensitivities may be, however over-stimulated by unscrupulous mountebanks, however 

disconnected from reality—trumps every other consideration, including even the 

maintenance of social order. To shed that idea, we must confront our national 

hysteria about race, which causes large numbers of otherwise sane people to believe 

that the hearts of their fellow citizens are filled with malice towards them. So long 

as we continue to pander to that poisonous, preposterous belief, we shall only wander off deeper into a wilderness of division, mistrust, and institutionalized rancorthat wilderness, the most freshly painted signpost to which bears the legend RACIAL PROFILING.

f98

Statement of Hispanic American Police Command Officers Association, 

Washington, D.C. 

SUPPORT THE END RACIAL PROFILING ACT OF 2001

Washington. D.C. (AUGUST 1, 2001)—The Hispanic American Police Command 

Officers Association (HAPCOA) representing 15,000 police command officers and administrators strongly support the End of Racial Profiling Act of 2001 introduced by 

Senators Feingold (D–WI), Clinton (D–NY), Corzine (D–NJ) and Representatives 

Conyers ( D–MI), Morelia (R–MD), and Greenwood (R–PA). 

National President Sheriff Ralph Lopez in a fetter to Senators, asked for support 

of the bill. Sheriff Lopez stated ‘‘that racial profiling is a discriminatory practice 

that poses barriers to effective policing practices. This issue is of significant importance to the Hispanic community because it jeopardizes rapport building among Hispanics and the police; this makes it less likely that Hispanics will seek help from 

police, report a crime, serve as a witness. or otherwise cooperate with law enforcement.’’ HAPCOA hopes to send a clear message to law enforcement agencies that 

‘‘racial profiling practices based on race, ethnicity, and/or national origin since it 

threatens the integrity of all police entities.’’

HAPCOA further supports the End Racial Profiling Act of 2001, because; it bans 

the use of racial tactics by federal law enforcement, provides incentives to state and 

local law enforcement agencies to eliminate the practice, requires the coffection of 

data on routine investigatory activities, establishes procedures for receiving, investigating, and responding to claims of racial profiling, requires training of law enforcement agents, and finally, holds them accountable for engaging in racial 

profiling. 

HAPCOA is a non-profit association composed of over 15,000 members, affiliate 

departments and offices, with command level law enforcement and other personnel 

throughout the United States and Puerto Rico. Its mission is to enhance capabilities 

and technological skills through training, networking, and establish relationships 

within law enforcement and other professions. Its national office is located at the 

Ronald Reagan Building &: International Trade Center, 1300 Pennsylvania Avenue, 

NW, Ste. 270, Washington D.C.

Statement of International Association of Chiefs of Police, Alexandria, 

fVirginia 

BIASED-BASED POLICING & DATA COLLECTION

The International Association of Chiefs of Police (IACP) believes that any form of 

police action that is based solely tin the race, gender, ethnicity, age or socio-economic level of an individual is both unethical and illegal. 

Therefore, the IACP strongly encourages all law enforcement agencies to develop 

and implement anti-discriminatory policies that explicitly prohibit biased enforcement practices. 

The IACP believes that data collection can play a role in reducing the incidence 

of biased enforcement actions. However, in order to achieve this goal, data collection 

programs must be conducted in a fashion that ensures that data is being collected 

and analysed in a impartial and methodologically sound fashion. 

In addition, the IACP strongly believes that legislative proposals addressing the 

issue of biased policing should be carefully drafted so that legitimate law enforcement practices and operations are not compromised. 

Therefore, the IACP believes that the following elements should be included in 

legislation that addresses biased-based policing and data collection. 

DEFINITION OF BIASED-BASED POLICING

‘‘Biased-Based Policing’’ should be defined as conduct by law enforcement officers 

motivated solely by an individual’s race, gender, ethnicity, age or socio-economic 

level, but should not preclude consideration of race or ethnicity when it is part of 

a suspect’s description or is otherwise validly related to an officer’s investigation of 

criminal activity. A clear definition provides guidance to law enforcement officers 

and serves as a statement of legislative intent. 

99

DATA COLLECTION

Data collection programs should have a specified and limited duration anal be 

confined to determining the existence or extent of hissed-based policing. This allows 

the collection and analysis of data over a finite period, without imposing an 

unending administrative burden on the law enforcement agencies. 

The amount of information collected. should be carefully tailored to reduce the intrusiveness of the inquiry on citizens, yet sufficient for a complete and valid analysis. The data must permit an analysis that correlates the demographic data with 

causal predicates and other relevant factors, such as location and citizen complaints, 

Therefore, the IACP strongly recommends that any proposed data collection regime should include data elements scientifically determined to provide valid results, 

such as:

1. Date and Time of Stop 

2. Location of Stop, including highway type 

3. Officer Identification Information (e.g. Badge Number) 

4. Race/Ethnicity of Driver 

5. Sex of Driver 

6. Date of Birth of the Driver 

7. Vehicle Type 

8. Registration, including state 

9. Specific Reason for making stop 

10 Disposition of stop 

11. Search Requested/Conducted? 

a) Reason for search request 

b) Type of search 

C) Race/ethnicity/sex/age of all passengers in vehicle if search is done 

d) Contraband found 

e) Property seized 

DRIVER/PASSENGER IDENTIFICATION

The manner of data collection should be designed to minimize the intrusiveness 

of the data collection on the citizen involved and reduce the administrative burden 

on police. 

Ideally, the IACP recommends that all drivers self identify their race/ethnicity on 

their drivers license application. The race/ethnicity should be included in a bar code 

on the license, but this information should not be displayed to the officer making 

the stop, on the ticket issued or the dispatcher running a computer check on the 

driver. This information should only be made available to the researchers/analysts 

performing the statistical analysis of the collected data. 

However, until such a system is available nationwide, the officer making the stop 

should report race/ethnicity on the basis of their objective observations/perceptions 

at the time of tile stop. 

DATA ANALYSIS

It is vital that the collected data be analyzed in an impartial and scientifically 

sound fashion. Therefore, the IACP believes that accredited academic institutions or 

other organizations that use qualified statisticians and analysts should be tasked 

with performing this work. The collected data should be compared to baseline data 

that provides an accurate reflection of the subject populations demographic composition when evaluating whether or not biased-based policing is, in fact, a problem. Researchers conducting the analyses should provide empirical evidence that the baseline data accurately reflects the demographic composition of the specific area (e.g., 

town, highway, etc.) being policed so that the results of the study will be statistically valid. 

INCENTIVE BASED APPROACH

Legislative proposals addressing data collection should provide law enforcement 

agencies with an incentive to perform data. collection. Under such an incentive 

based approach, agencies that agree to perform data collection as set forth in the 

legislation would be eligible to receive federal assistance funds that may be used 

for a variety of uses related to combating biased policing. For example, agencies 

should be authorized to use these funds to:

1) Cover the costs associated with implementing the data collection regime 

2) Purchase equipment, such as in-car video/audio equipment, that is useful 

in addressing concerns over biased policing (In-car video cameras are one 

100

of the most effective ways to document motor vehicle stops and interactions 

between officers and drivers/passengers. These systems serve as a deterrent 

to biased-based stops and false reporting of incidents.) 

3) Cover the costs of training programs for their law enforcement officers. 

(Training is an important component of legislation. Training will help sensitize police officers to the need to treat all persons equally and fairly. However, specific-training requirements, including the number of hours or topics to be covered, should be the responsibility of law enforcement administrators, whom should design training programs appropriate to their agencies.)

Article by Katherine Kersten, Weekly Standard, August 20

f –27, 2001 

RACE TO CONCLUSIONS

WHAT THE ACTIVISTS DON’T TELL YOU ABOUT RACIAL PROFILING. 

Five years ago, Minneapolis was nationally ’ notorious as ‘‘Murderopolis.’’ The 

murder rate was soaring, and many citizens walked in fear, especially in poor neighborhoods. A few short years later, there’s been an astonishing turnaround. Today, 

thanks partly to a new initiative by local police, crime in Minneapolis has plummeted to its lowest level since 1966-and, in an added benefit, citizen complaints 

about the police are down 40 percent, though arrests have risen rapidly. Apparently, 

officers have managed to bring crime under control while dealing correctly with 

those they encounter when enforcing the law. 

Yet instead of congratulations, police are catching brickbats. The department is 

under siege in the media, accused of making racial bigotry a standard operating procedure. The outcry began in January 2001, with the release of demographic data 

suggesting that officers who made traffic stops were pulling over proportionately 

more black drivers than white, and taking black drivers into custody more often. 

Activist groups quickly charged that police were targeting minorities because of 

their race, not their illegal conduct, and branded the department with the scarlet 

letter of racial profiling. 

Like the decline in crime, the rancor over racial profiling is a national phenomenon. And as in Minneapolis, so in dozens of cities, studies of police stops by 

race are fueling the debate. Already, traffic-stop studies have been completed or are 

proceeding in locales as disparate as San Jose, California, and Volusia County, Florida. At least 10 states have passed laws requiring studies of traffic stops, and many 

others are considering legislation. At the federal level, representative John Conyers 

and senator Russ Feingold have introduced legislation that would require the Department of Justice to conduct a nationwide study of traffic stops. 

The cost of these studies is often significant, both in dollars and officer time. But 

their chief drawback is something deeper. Though ostensibly undertaken to diagnose 

the problem, these studies to date don’t begin to support the conclusions that the 

media and activist groups are drawing from them. The crusaders against racial 

profiling would have us believe that their findings trip the veil off a widespread 

abuse of civil liberties, and prove that police are targeting minorities because of 

their race. But the studies do nothing of the kind. To conclude from traffic-stop 

numbers like those gathered in Minneapolis that the police are racist is about as 

justified as it would be to conclude from the fact that 95 percent of Minnesota’s prison inmates are men that police are sexist. A closer look at the Minneapolis experience makes this plain. 

THOUGH OSTENSIBLY UNDERTAKEN TO DIAGNOSE THE PROBLEM, TRAFFIC-STOP STUDIES

DON’T BEGIN TO SUPPORT THE CONCLUSIONS BEING DRAWN FROM THEM. 

For six months beginning in May 2000, the Minneapolis police department gathered information on every traffic stop, noting the driver’s race, the date, the location, and whether the driver was warned, ticketed, or taken into custody. The raw 

data released under pressure from a local newspaper appeared disturbing at first 

glance. Though blacks make up 18 percent of Minneapolis’s population, they accounted for 37 percent of traffic stops, while whites, 65 percent of the population, 

accounted for only 43 percent of stops. No significant disparities turned up in the 

rates at which different racial groups received tickets, but black, Hispanic, and Indian drivers were more than twice as likely as whites to be taken into custody. And 

101

these figures are only the beginning: Minneapolis is now conducting a more detailed 

two-year study. More challenging is to determine what the figures mean. 

Here’s the problem: To analyze raw traffic-stop numbers accurately, one must 

have an appropriate benchmark against which to measure them. But no one knows 

what the proper benchmark is. In the above example of prisoners’ sex, to determine 

whether Minnesota has ‘‘too many’’ male inmates, we must compare the proportion 

of males in the prison population with the proportion of males in the criminal population, not the population at large, since in Minnesota, as elsewhere, men commit 

the vast majority of imprisonable offenses. Where traffic stops are concerned, however, no one has devised an appropriate benchmark, since the factors affecting who 

gets pulled over are numerous and complex. 

Lacking a meaningful basis for comparison, study proponents usually take the 

easy way out: They compare the racial breakdown of traffic stops to the racial 

breakdown of the general population of, say, the relevant county or metropolitan 

area. Then they attribute to racism any deviation that appears to ‘‘favor’’ whites. 

But this simplistic approach merely gives a patina of science to what is essentially 

an ideological project. 

So what would a meaningful benchmark be? Obviously, to determine whether an 

officer is stopping ‘‘too many’’ minority drivers, we must first know the racial breakdown of the motorists on the roads he patrols. For instance, suppose that over six 

months, an officer who patrols Minneapolis’s heavily poor and minority Phillips 

neighborhood stops 80 percent black drivers, while another officer who works the 

swank Lake Harriet beat, where investment bankers jog, stops only 15 percent 

black drivers. Can one conclude that the first officer is a racist, while the other 

isn’t? Of course not. 

To learn whether either cop has stopped ‘‘too many’’ minority drivers, we need a 

street census of the neighborhoods in question-something few studies include. The 

time of day that the stops occurred is also likely to be crucial. Thus, between 4 PM. 

and 6 PM., traffic on Minneapolis’s Portland Avenue, a major artery in Phillips, is 

made up largely of white suburban commuters. But between 9:00 PM. and 3:00 

A.M., when most enforcement takes place, drivers on Portland are far more heavily 

minority. Since most stops occur when suburban motorists have left the area, traffic 

stops on Portland are likely to include a disproportionately high share of minority 

drivers. 

But knowing who was on the roads when stops took place is only one requirement 

for meaningful analysis. We must also know whether some racial groups commit 

more traffic violations than others; if so, their stop numbers should reflect this. 

For example, traffic stops often involve cars with faulty equipment, like broken 

tail lights, loud mufflers, or cracked windshields. Motorists who drive older cars 

which tend to be in relatively poor repair-are more likely than other drivers to be 

stopped for such violations. 

Presumably, black drivers in Minneapolis drive older cars, on average, than white 

drivers do. (According to 1990 Census data, the per capita income of the city’s black 

residents is less than half that of white residents.) Under these circumstances, one 

would expect proportionately more black than white drivers to be pulled over for 

equipment violations. 

The story may be similar with moving traffic violations, though data are hard to 

come by. Writing in City Jonrnal, journalist Heather Mac Donald points out that 

random national surveys of drivers on weekend nights have found that blacks were 

more likely to fail breathalyzer tests than whites. Likewise, the National Highway 

Traffic Safety Administration has found that blacks were 10 percent of drivers nationally, 13 percent of drivers in fatal accidents, and 16 percent of drivers in injury 

accidents. (Mac Donald notes that lower rates of seat-belt use may contribute to 

these figures.) 

Age is another important variable. Young drivers are more likely than older drivers to violate traffic laws, and to drive negligently or recklessly, as any parent 

knows who’s footed a teenager’s insurance bill. Minneapolis’s black population is significantly younger than its white population, and thus presumably includes a larger 

proportion of young drivers. (While blacks are only 18 percent of the city’s total population, they are 31 percent of residents under 18.) This racial age disparity reflects 

a national pattern. In Chicago, for example, blacks are 34 percent of residents over 

18, but 44 percent of those under 18; in Boston, the figures are 22 percent and 40 

percent. Most likely, this sizable age disparity contributes significantly to the blackwhite difference in traffic stops. 

Clearly, many factors can explain legitimate racial disparities in traffic stops. But 

one factor appears to dwarf all the others: the extraordinary disparities in the rates 

at which various racial groups commit crimes. Nationally, blacks commit murder at 

seven times the rate whites do. Likewise, though blacks are 13 percent of the popuVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00105 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
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lation, they commit 46 percent of all robberies. In Minneapolis, the disparity is even 

starker. Blacks are 18 percent of the population, but crime victims report that 

blacks commit 66 percent of serious offenses, like murder, rape, and robbery, and 

58 percent of ‘‘quality of life’’ crimes, like prostitution and vandalism. The implication is tragic, but undeniable: If police are to curtail crime, they will inevitably 

interact more with some racial groups than others. 

Racial crime rates affect traffic-stop disparities most directly by shaping patterns 

of police deployment. If the police concentrate their activity in a relatively small 

number of neighborhoods, drivers there will have a higher chance of being stopped 

for traffic violations than drivers in less heavily policed areas. If these neighborhoods have relatively large minority populations, the share of minority drivers 

pulled over will be relatively high. 

Minneapolis police do precisely this. The city is divided into 84 residential neighborhoods for purposes of law enforcement and administration. During the traffic 

stop study, 12 of these neighborhoods accounted for 50 percent of the city’s crime, 

while a mere 5 neighborhoods-home to one-quarter of the city’s black population-accounted for one-third of its crime. (These figures reflect calls for police assistance, 

a proxy for crime.) Under CODEFOR, the computerized crime-fighting strategy 

launched in January 1998 by police chief Robert Olson and mayor Sharon Sayles 

Belton, officers and squad cars are concentrated in high-crime neighborhoods, and 

traffic stops there are important to maintaining order. The stops assist officers in 

their effort to get guns and drugs off the street, discourage robberies, find stolen 

cars, and find people wanted for arrest. 

In April 2001, an independent agency under contract with the Minneapolis Police 

Department released an analysis of the city’s raw traffic-stop data. The report found 

that stops of black drivers were heavily concentrated in the city’s five highest-crime 

neighborhoods. It also found strong evidence that racial disparities in stops were 

due to more intensive overall policing in such neighborhoods, rather than to a tendency on the part of officers there to conduct more traffic stops than their peers patrolling elsewhere. However, the report also cited a need for additional data. Its 

findings were largely ignored. Despite this evidence that neighborhood crime rates 

are the chief explanation for racial disparities in traffic stops, Minnesota’s media 

and activist groups continue to point to police bias as the culprit, portraying it as 

a serious civil liberties problem that requires urgent countermeasures. 

One real and very negative consequence of the irresponsible, ideologically driven 

use of traffic-stop studies-and they are likely to remain the preferred tools of police 

critics for some time to come-is the growing public belief that police bias is widespread. Among minorities, the perception of bias is undermining police authority 

and dissuading young citizens from joining police forces they insist harbor racist 

thugs. Defense attorneys, too, seek to discredit police actions by routinely invoking 

racial profiling in court. This ploy appears to be increasingly successful, especially 

in drug-related cases. 

Most seriously, however, the perception of police bias is generating pressure for 

de facto racial quotas in all law enforcement activities, from traffic stops to searches 

to arrests. A Clinton-era law compounds the problem by giving the justice Department power to sue local police departments for tolerating ‘‘a pattern and practice’’

of misconduct in racial matters. (The feds are unlikely to suspect such a pattern, 

of course, if de facto racial quotas govern stops and arrests.) In the last few years, 

both Pittsburgh and Los Angeles have sought to avoid action under this law by 

agreeing to federal oversight of their law enforcement activities. Currently, the spotlight is on racially troubled Cincinnati, where the American Civil Liberties Union 

has filed suit alleging a 30-year pattern of racial profiling. Together, the trends toward racial quotas and federal oversight threaten to undermine local control of law 

enforcement and roll back the nation’s recent striking gains in public safety. 

By their nature, quotas are contrary to the fair, responsible exercise of professional judgment on the part of police, which alone can build confidence in law enforcement over the long haul. The rhetoric of racial profiling and the pseudo-science 

of traffic-stop studies, though deployed in the name of justice, actually inflame mistrust between police and citizens. Regrettably, they are driving the agenda of the 

activists further from the agenda of the people, who crave more than anything the 

right to walk safe streets.

f103

LEADERSHIP CONFERENCE ON CIVIL RIGHTS, 

WASHINGTON, D.C., 

July 31, 2001

The Hon. Russ Feingold 

United States Senate 

716 Hart Senate Office Building 

Washington, DC 20510

Dear Senator Feingold:

The Leadership Conference on Civil Rights, a coalition of over 180 national organizations working to advance civil rights laws and policies, is pleased to endorse S. 

989, the End Racial Profiling Act of 2001. We look forward to working with you to 

ensure enactment of this critically important legislation. 

The reliance by law enforcement agents on race, ethnicity or national origin to 

determine whom to target for criminal investigation violates our nation’s basic constitutional commitment to equal justice under law. Racial profiling is also contrary 

to effective law enforcement—police practices that result in disproportionate stops 

of minority pedestrians or motorists generate resentment among minority citizens 

and undermine the respect and trust that is essential for successful community policing. 

We have no doubt that the majority of law enforcement officer discharge their duties with; honorable intentions. Nonetheless, empirical evidence from around the nation reveals that profiling by federal, state, and local law enforcement agencies is 

widespread. Despite efforts by some state and local governments to address this 

problem, federal legislation is necessary. 

We are gratified that you and the other sponsors of S. 989 recognize the need to 

wove beyond mere study of the issue of racial profiling, and have crafted a bill that 

takes direct aim at this pernicious practice. Consistent with President Bush’s declaration to Congress that racial profiling ‘‘is wrong and we will end it in America,’’

S. 989 bans racial profiling and provides meaningful enforcement of that prohibition. The bill also provides state and local law enforcement. agencies with resources 

to implement procedures that can prevent racial profiling, including data collection. 

S. 989 is a balanced and comprehensive . solution to a problem that strikes at the 

heart of our basic constitutional guarantees. 

‘‘Equality In a Free, Plural, Democratic Society′′

We thank you for introducing S. 989, and we stand ready to assist you in any 

way as the bill moves through the legislative process. 

Sincerely,

WADE HENDERSON

Executive Director

DOROTHY I. HEIGHT

f Chair

Mexican American Legal Defense and Educational Fund, Washington, D.C., 

July 31, 2001

Dear Chairman Russ Feingold and Ranking Member Strom Thurmond: 

RE: S. 989—THE END RACIAL PROFILING ACT OF 2001

I write this letter on behalf of the Mexican .American Legal Defense acid Educational Fund (MALDEF), a national non-profit non-partisan organization dedicated 

to promoting the civil rights of the 35 million Latinos living in the United States. 

Chicago REF endorses The End Racial Profiling Act of 2001, introduced by Senator 

Feingold in the Senate, and urges that the members of the Judiciary Subcommittee 

on the Constitution, Federalism and Property Rights support the bill as well. 

104

RACIAL PROFILING OF LATINOS BY FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT

IS A REGIONAL OFFICE NATIONAL PROBLEM

The following are several examples that support the conclusion that racial 

profiling of Latinos is a national problem. 

According to a report by the Leadership Conference on Civil Rights, immigration 

laws have been more selectively enforced by the Immigration anal Naturalization 

Service (INS) against Latinos than any other group. Ninety percent of those subjected to INS enforcement actions are Latino, even though Latinos constitute 60% 

of all undocumented persons in the U.S. LEADERSHIP CONFERENCE ON CIVIL RIGHTS, 

JUSTICE ON TRIAL: RACIAL DISPARITIES IN THE AMERICAN CRIMINAL JUSTICE SYSTEM

4 (2000). 

According to a poll conducted by The Washington Post, Kaiser Foundation, and 

Harvard University, in response to the question, ‘‘Have you ever been unfairly 

stopped by police because of your race or ethnic background?,’’ 20% of Hispanies responded ‘‘Yes’’ compared to only 4% of white non-Hispanics. Richard Morin & Michael H. Cottman, Discrimination’s Lingering Sting, WASH. POST, June 22, 2001, 

at Al. 

In a review by The New York Times of a random sample of work site raids conducted by the INS New York District office, the Times found that 81 % of the raids 

were carried out after the agents who conducted the raids used factors such as ‘‘skin 

color, use of Spanish, foreign accents and clothing ‘not typical of North America’ as 

primary evidence that the workers were likely to be undocumented.’’ As a result, 

96% of the 2,907 persons arrested in the work; site raids were Latino even though 

Latinos do not represent 96% oaf the undocumented population in the New York 

District. Susan Sachs, Files Suggest Profiling of Latinos Led to Immigration Raids, 

N. Y. TIMES, May 1, 2001, at B1. 

In areas of the country where there is new and rapid growth of the Latino community, local law enforcement officials are using racial profiling as a method to enforce the law. As one example, MALDEF brought suit on March 23, 2001 against 

the City of Rogers, Arkansas, and its police on behalf of three named Latino plaintiffs and a class of similarly situated individuals for violations of their Fourth and 

Fourteenth Amendment rights under the U.S. Constitution. The plaintiffs in the 

case allege that, not only was there no apparent justification for the stops made by 

police, they were improperly asked for immigration papers and their social security 

card, simply because they were Latino. T3Lo ́pez, et al. v. City of Rogers, Arkansas, 

et al., USDC No. 01–5061, Western District of Arkansas, Fayetteville Division. 

MALDEF has received similar complaints from Alabama and Tennessee. 

S. 989 TITLE I’S GENERAL PROHIBITION ON RACIAL PROFILING IS NEEDED, WILL NOT IMPEDE EFFECTIVE LAW ENFORCEMENT ACTIVITIES, AND WILL REDUCE VIOLATIONS OF

INDIVIDUAL RIGHTS

The following is a vivid example of how reducing the use ofracial profiling does 

not impede effective law enforcement activities but does reduce the number of civil 

rights’ abuses. 

After a GAO study revealed that U.S. Customs Service inspectors used racial 

profiling to target persons suspected of smuggling drugs, the Service made major 

revisions in its policies and practices to reduce the use of racial profiling. As a result, 16,000 fewer black and Latino travelers were subjected to pat downs, X-rays, 

and other body searches last year compared to 1998 data. Overall, the total number 

of body searches dropped 80% froze 1998 to 2000. At the same time, drug seizures 

increased 38% since 1999. Lori Montgomery, New Police Policies Aim to Discourage 

Racial Profiling, WASH. POST, June 28, 2001, at Al. 

S. 989 TITLE II’S PROHIBITION ON; RACIAL PROFILING BY FEDERAL LAW ENFORCEMENT

AS WELL AS REQUIREMENTS THAT POLICIES AND PRACTICES BE ADOPTED TO ELIMINATE RACIAL PROFILING ARE NEEDED

The examples above demonstrate the use of racial profiling by the INS and the 

U. S. Customs Service. There are other federal agencies, such as the Drug Enforcement Administration and the Federal Bureau of Investigations that may also be 

using racial profiling. The federal government should be leading the country by example by prohibiting racial profiling, collecting data on investigatory activities, ensuring a legitimate complaint process is in place, and disciplining agents who engage in racial profiling, all requirements set forth in Title II of S. 989. 

105

S. 989 TITLE III’S PROHIBITION ON RACIAL PROFILING BY STATE AND LOCAL LAW EN- FORCEMENT AS WELL AS REQUIREMENTS THAT POLICIES AND PRACTICES BE ADOPTED

TO ELIMINATE RACIAL PROFILING ARE NEEDED

Many state and local jurisdictions have not adopted a prohibition on racial 

profiling. Only approximately 13 states have passed laws requiring police to collect 

traffic-stop data. Lori Montgomery, New Police Policies Aim to Discourage Racial 

Profiling, WASH. POST, June 28, 2001, at A1. About 400 out of 18,000 police agencies nation-wide are collecting such data. ,Id. Many jurisdictions throughout the 

country do not have effective complaint or disciplinary procedures. The prohibition 

and requirements of Title III of S. 989 would address these concerns. 

Title III would not infringe on states’ rights since the only jurisdictions that would 

be subject on a mandatory basis to the provisions of Title III would be those jurisdictions that apply and receive .federal grants from the federal programs set forth 

in the proposed bill. The federal funds covered under Title III’s mandatory provisions are set forth in Title V of S, 989. In addition, Title III provides additional development grants for which state and local jurisdictions can apply to further develop 

the best policing practices. 

S. 989’S TITLE IV’S REQUIREMENT THAT THE ATTORNEY GENERAL SUBMIT REPORTS TO

CONGRESS ON RACIAL PROFILING BY FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT AGENCIES IS APPROPRIATE

As the leading law enforcement official in the country, the Attorney General is 

often asked to monitor the federal agencies as well as state and local law enforcement agencies to ensure that the laws are being implemented fairly. Since under 

S. 989, the federal, state and local agencies will be required to submit reports to 

the Attorney General, the Attorney General will be in the best position to collect 

the data and submit them to Congress. Congress, in turn, can continue to monitor 

the prevalence of the use of racial profiling on a national level to determine if further legislation is needed to address this matter. 

It is our hope that the Subcommittee will support S. 989 a9 a needed and effective 

strategy to begin addressing the national problem of racial profiling by federal, state 

and local law enforcement. Until the use of racial profiling is adequately addressed, 

the civil rights of Latinos will continue to be violated. Furthermore, these violations 

create a feeling of distrust of the legal system and law enforcement within our community, thus compromising the public safety of the communities where we live. 

In addition to the examples provided in this letter, we have also conducted legal 

analyses in the area of racial profiling and would be willing to provide such analyses 

in areas requested. Should you have further questions or requests, please do not 

hesitate to contact MALDEF’s Regional Counsel in Washington, D.C., Marisa 

Demeo, at 202–293–2828. 

Sincerely,

ANTONIA HERNANDEZ 

fPresident and General Counsel

Article Lori Montgomery, Washington Post, June 28, 2001 

NEW POLICE POLICIES AIM TO DISCOURAGE RACIAL PROFILING

A troubling self-portrait has emerged a year after hundreds of police agencies 

began investigating the use of racial profiling by their officers, and a growing number of departments are responding with policies to discourage harassment of innocent minority travelers. 

In Washington state, the highway patrol plans to use its data to question and discipline individual troopers whose records suggest racial profiling. The former chief 

also canceled awards for drug arrests, saying they may encourage troopers to use 

profiles instead of focusing on hazardous drivers, thus rewarding ‘‘the wrong kind 

of behavior.’’

In San Diego, city police have hired academic consultants and plan to convene 

focus groups to try to understand why officers stop and search black and Hispanic 

drivers at rates far higher than white drivers. 

And last month, the California Highway Patrol declared a six-month moratorium 

on consent searches, the focus of a ’class-action lawsuit by the American Civil Liberties Union, which says the searches disproportionately target minorities. Troopers 

106

must now develop probable cause of criminal activity before searching a vehicle, instead of relying on driver consent. 

Some officers think ‘‘we’re giving up the store’’ by voluntarily halting consent 

searches, said CHP Commissioner D.O. ‘‘Spike’’ Helmick. ‘‘But it’s incumbent upon 

us to stand back and look at what we’re doing.’’

The U.S. Customs Service appears to be the first agency to significantly reduce 

the number of minorities searched for contraband. After enacting far-reaching reforms that include requiring supervisory approval for every intrusive search, Customs slashed body searches by nearly 80 percent at the nation’s airports from 1998 

to 2000 and has increased drug seizures by 38 percent since 1999. 

Long accused of inappropriately targeting black and Hispanic air passengers, Customs is providing strong evidence, analysts say, that good police work can spare minority travelers the indignity of criminal suspicion. 

Meanwhile, numerous police chiefs across the nation have been genuinely troubled by the portraits their data paint. And many are proving willing to probe deeper. 

‘‘Some departments are still saying, ‘No, we’re not doing it,’ even though the numbers show something different. But a fair number of departments are now saying, 

‘This is something that undercuts our ability to serve all of our clients, and we want 

to know what’s going on and what to do about it,’ ’’ said John Lamberth, a psychology professor at Temple University and a leading analyst of racially biased police practices. 

Racial profiling emerged as a national concern after widely publicized incidents 

indicating that police use ethnicity and skin color to make law enforcement decisions. A recent Washington Post survey found that more than half of black men and 

one in five Hispanic and Asian men say they have been victims of racially biased 

policing. 

In February, President Bush told Congress that racial profiling ‘‘is wrong, and we 

must end it.’’ At least 13 states—including Maryland—have passed laws requiring 

police to collect traffic-stop data. The Clinton administration ordered a variety of 

federal agencies to keep similar data. 

At least eight agencies are collecting data by order of a federal court or under 

agreement with the U.S. Justice Department. Among them: the Montgomery County 

police, Maryland State Police and New Jersey State Police, which brought the 

profiling debate to a boil when two troopers opened fire on a van carrying four unarmed black and Hispanic men on the New Jersey Turnpike in April 1998. 

In all, about 400 of the nation’s 18,000 police agencies are collecting data, according to researchers at Boston’s Northeastern University. About half have completed 

their first reports, said Amy Farrell, of Northeastern’s Center for Criminal Justice 

Policy Research. 

Regardless of what the numbers show, the ‘‘overwhelming conclusion’’ has been 

that ‘‘we don’t have a problem,’’ Farrell said. 

Many police remain deeply wary of data collection, arguing that statistics fuel allegations of racism without offering clear solutions. No one has come up with a satisfactory method for identifying the racial makeup of a patrolled population—drivers 

on Interstate 95, for example—making it difficult to interpret the data. 

Among the skeptics is Maryland State Police Superintendent David B. Mitchell. 

In 1995, an ACLU lawsuit forced the Maryland police to became the first major department in the nation to collect data on traffic stops. 

Since then, Mitchell has enacted reforms that have cut searches of minority drivers. But he has refused to address lingering questions about why cars driven by minorities still make up more than 60 percent of vehicle searches on I–95, dismissing 

the numbers as a reflection of the broader reality that minorities are more often arrested for crimes. 

‘‘The issue of race is easy to raise and frankly hard to defend against,’’ Mitchell 

said. ‘‘This is not a perfect world. Our numbers are never going to be perfect.’’

That attitude is still common in the law enforcement community. What’s different 

now is that a vanguard of ‘‘smart departments’’ are taking action to improve their 

statistics, Farrell and others said. 

The U.S. Customs Service is leading the pack. 

‘‘There’s no doubt about it: They’re doing a better job,’’ said Ed Fox, a lawyer who 

represents 90 black women who sued Customs after being frisked or worse in 1997 

and 1998 at Chicago’s O’Hare International Airport. ‘‘They’ve stopped picking on the 

people who don’t carry drugs.’’

The transformation began in the late 1990s, after a spate of lawsuits accused Customs inspectors of singling out minority air passengers, particularly women, for 

strip-searches. The most notorious case involved Amanda Buritica, a Hispanic 

107

school crossing guard from Port Chester, N.Y., who was stopped in San Francisco 

on her way home from Hong Kong. 

Buritica was handcuffed, transferred to a hospital and forced to swallow powerful 

laxatives that caused her to move her bowels 28 times. No drugs were found. After 

25 hours, Buritica was released without so much as an apology. 

Customs has broad constitutional authority to defend the nation’s borders, including the power to search anyone and anything entering the country. Top officials 

were largely unconcerned by cases like Buritica’s, said Raymond W. Kelly, Customs 

commissioner at the time. ‘‘Their feeling was: ‘Hey, it’s a legal deal. We’re winning the lawsuits,’ ’’ Kelly said 

in an interview. But Kelly was appalled. ‘‘My response was: ‘Yes, you’re winning the 

lawsuits, but you’re abusing U.S. citizens. Just because you have the power to do 

something doesn’t mean you should do it.’ ’’ Kelly ordered inspectors to begin keeping detailed records on passenger searches, 

which were delivered to him each morning. Then he used the threat of a congressional inquiry into allegations of racial profiling, looming in May 1999, to persuade 

officials to adopt far-reaching reforms. 

No longer could inspectors touch anyone without a supervisor’s approval. If there 

was reason to believe a passenger had swallowed drugs, only the port director could 

authorize removal to a medical facility. 

Port directors were ordered to consult a lawyer before approving X-rays or monitored bowel movements and to reassess detentions every few hours. 

Kelly also made it more difficult to justify searches. He banned a list of 80 triggers that branded virtually anyone a potential drug courier, including passengers 

who were uncooperative or too cooperative, nervous or too calm, wearing sunglasses 

or bulky clothing. ‘‘If you’re stopping a disproportionate number of minorities, there may be good 

reasons for it. But they have to be articulated,’’ Kelly said. ‘‘People should not be 

searched just because of a vague notion in some inspector’s head.’’ Finally, Kelly acted to make searches less intimidating. Inspectors must now tell 

passengers the reasons for the search, offer to call relatives if detention lasts more 

than two hours, pay for hotels and missed flights and give searched passengers a 

comment card pre-addressed to Customs headquarters. 

At first, inspectors were wary. Searches plummeted, along with drug seizures. ‘‘There was a feeling that we’ll never make another seizure out here again,’’ said 

Robert Meekins, deputy port director at John F. Kennedy International Airport. 

But inspectors soon realized Kelly was not trying to identify scapegoats, Meekins 

said. The result: Pat downs, X-rays and other body searches dropped from more 

than 40,000 in 1998 to fewer than 10,000 last year. Seizures of drugs and contraband rose from 4 percent of searches in 1998 to nearly 18 percent so far this year. 

Minorities still account for more than two-thirds of searches, a fact that may 

never change, Kelly said. Flights from Jamaica, Colombia, Africa and the Caribbean 

produce the vast majority of drug seizures, and those flights tend to be packed with 

black and Hispanic travelers, Customs officials said. 

But compared with 1998, nearly 16,000 fewer black and Hispanic travelers were 

physically accosted last year, according to Customs data. The case of a recent arrival 

to JFK from Ecuador illustrates how the new system works. 

The man said he flew to New York to see the sights. But when pressed by a Customs inspector, he couldn’t name a single sight, not even the Statue of Liberty. He 

claimed to be a professional photographer but knew nothing about lenses or light. 

He said his ticket was purchased in Chile, but records showed it came from Uruguay. And he had no idea what the ticket cost or whether it was paid for by credit 

or with cash. 

After extensive questioning, a supervisor approved a pat down. Nothing. So at 

12:30 a.m., the beeper dangling from a scrunchie on Susan T. Mitchell’s bedpost 

began to bleat. Mitchell, the Customs port director at JFK, consulted an equally 

groggy lawyer and authorized an internal search. 

‘‘You don’t disturb the port director unless you have a really good feeling, especially if it’s 2 a.m.,’’ said Mitchell, who gave the go-ahead to X-ray the ersatz photographer, who passed balloons containing nearly a kilo of heroin just before dawn. ‘‘Inspectors go to great lengths to verify your story so they can say goodbye.’’

Kelly, a former New York City police officer, believes Customs offers a model for 

other police agencies. A growing number of officers share his belief that police cannot ignore the allegations of racial profiling. 

‘‘When the issue of profiling first came up, I went into police seminars where 

there was a lot of denial in the room. People were saying, ‘This is not happening. 

This is a witch hunt,’ ’’ said former Washington State Patrol chief Annette Sandberg, 

who ordered the agency to begin collecting data in 1999. 

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‘‘Given racial tensions across America,’’ Sandberg said, ‘‘you have to be responsive 

to the community. We have to have the data to prove we deal with the bad cops 

and stand behind the good ones. And most people can live with that.

f ’’

Article by Richard Morin and Michael H. Cottman, Washington Post, June 

22, 2001 

DISCRIMINATION’S LINGERING STING; MINORITIES TELL OF PROFILING, OTHER BIAS

More than half of all black men report that they have been the victims of racial 

profiling by police, according to a survey by The Washington Post, the Henry J. Kaiser Family Foundation and Harvard University. 

Overall, nearly 4 in 10 blacks—37 percent—said they had been unfairly stopped 

by police because they were black, including 52 percent of all black men and 25 percent of all black women. 

Blacks are not the only Americans who say they have been the targets of racial 

or ethnic profiling by law enforcement. One in five Latino and Asian men reported 

they had been the victims of racially motivated police stops. 

But racial profiling is only one of many examples of intolerance that minorities 

say they continue to confront. More than a third of all blacks interviewed said they 

had been rejected for a job or failed to win a promotion because of their race. One 

in five Latinos and Asians also said they had been discriminated against in the 

Workplace because of their race or ethnicity. 

Overwhelming majorities of blacks, Latinos and Asians also report they occasionally experience at least one of the following expressions of prejudice: poor service 

in stores or restaurants, disparaging comments, and encounters with people who 

clearly are frightened or suspicious of them because of their race or ethnicity. 

‘‘These are precisely the kinds of incidents that contribute to what is coming to 

be called black middle-class rage—the steady occurrence of slights and put-downs 

you know in your gut are tied to race but that rarely take the form of blatant racism,’’ said Lawrence Bobo, a professor of Afro-American studies and sociology at 

Harvard University. ‘‘No one uses the N-word. There is not a flat denial of service. 

It is insidious, recurrent, lesser treatment.’’

A much smaller proportion of whites also say they have been victims of discrimination: One out of every three reported that they sometimes face racial slurs, bad 

service or disrespectful behavior. 

Claims and counterclaims about the prevalence of racial profiling have been made 

for years. But there have been few reliable attempts to estimate the degree to which 

blacks, Latinos and Asians believe they have been victims of the practice. And no 

national data exist that firmly document the pervasiveness of the practice, making 

it impossible to compare perceptions with actual incidence. 

For this survey, the latest in a series of polls on public policy issues conducted 

by The Post, the Henry J. Kaiser Family Foundation and Harvard University researchers, 1,709 randomly selected adults were interviewed by telephone from 

March 8 through April 22. The sample included 315 Hispanics, 323 blacks and 254 

Asians. 

The margin of sampling error for the overall results is plus or minus 3 percentage 

points. It is plus or minus 6 points for blacks, 7 points for Latinos and 9 points for 

Asians. 

Widely publicized incidents around the country have drawn attention to the targeting of minorities by police, a practice some police officials have tried to justify 

by arguing that minorities are more likely to commit crimes. President Bush told 

Congress in February that ‘‘it is wrong, and we must end it.’’ Sen. Russell Feingold 

(D–Wis.) and Rep. John Conyers Jr. (D–Mich.) recently introduced companion bills 

in the Senate and the House that would withhold funding from agencies that engage 

in racial profiling. 

And suddenly, from New Jersey to California, victims of unwarranted police stops 

and harassment are telling their stories and, for the first time, are being heard. 

Kinte Cutino, 24, a house painter in New Haven, Conn., said he was riding his 

bike when a police officer pulled him over. ‘‘He asked where I was headed, and I 

told him. He searched me, and didn’t find anything and then he let me go.’’

Cutino shrugged off the encounter. ‘‘They will stop you in certain areas, and if 

you’re black, most likely you will get stopped,’’ he said. ‘‘You can’t do anything about 

it. That’s just the way it is.’’

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Tommy Thorne would seem to be an unlikely target of police attention. Thorne, 

62, is a retired Army lieutenant colonel who recently retired as director of an engineering company in Portland, Ore. 

But last year, he and his wife were driving through the Mojave Desert on a vacation trip to Las Vegas. When he pulled his Cadillac Eldorado out of a gas station, 

‘‘a police car was on my bumper; he was real close. When I turned, he turned; when 

I changed lanes, he changed lanes. He kept following me. ‘‘Finally I pulled over and waited five minutes. And he stopped. When I pulled 

off, he followed me again and then came barreling up alongside me and started pulling ahead of me, and backing off, and pulling ahead.’’ Thorne said the officer’s intimidating behavior continued for several more miles, 

and then the officer backed off. ‘‘He never pulled me over or issued a summons. It 

just irritated me. And there was nothing I could do about it. I think he saw a black 

guy in the desert and thought I was a drug dealer. Who knows? But I guess if you’re black and male, at some point it’s going to happen to you.’’ Steve Jaime, a guest services manager at a suburban Chicago hotel, recalled the 

night that he and some friends were coming home from the Taste of Chicago food 

festival when the police stopped their car in a predominantly Hispanic neighborhood. Without explanation, the officers ordered them out of their car. ‘‘That’s when the police officer put a gun to my head while he was checking me 

out,’’ said Jaime, who is Mexican American. Then the officers abruptly told Jaime 

and his friends to go. ‘‘They were pissed off about something and they took it out 

on us, because we were Hispanic.’’ The survey found that other forms of racial intolerance are commonplace. More 

than 8 in 10 blacks and two-thirds of all Latinos and Asians say they occasionally 

experience at least one of these four intolerant acts: poor service, racial slurs, fearful 

or defensive behavior, and lack of respect. Two-thirds of all blacks and nearly half 

of all Latinos anti Asians say they experience two or more of these forms of intolerance from time to time. 

Sometimes these ugly moments provoke anger, as when a waiter in an expensive 

steakhouse asked Earl Arredondo, a 30-year-old Latino from Harlingen, Tex., if he 

could afford the $ 32 rib-eye steak he had just ordered and later dismissively asked 

him if he knew ‘‘what calamari is.’’ And sometimes they provoke fear, as when a carload of drunken whites pulled to 

a stop alongside Martha Matsuoka, an Asian American who lives in Los Angeles. 

Then they threw beer bottles at her and demanded that she ‘‘go home’’ and ‘‘buy 

American.’’ I understand these kinds of things rationally, but personally I was stunned,’’ said 

Matsuoka, 39, a graduate student at the University of California at Los Angeles. 

‘‘It was so real. On a personal level, my mother was upset. She said she had hoped 

that I would never have to experience anything like that.’’

The prejudice reflected in these incidents is clear. In other instances, perceptions 

may not reflect reality: An honest error or an unintended slight may be misconstrued as an act of racial intolerance. 

But Harvard’s Bobo cautions that it would be dangerous to dismiss the bulk of 

these claims as misperceptions or misunderstandings. ‘‘These feelings of victimization are not arrived at easily, or because they are pleasant feelings to hold,’’ he said. 

‘‘We have to regard them as indicators of a very real social phenomenon. For example, blacks complained for years that they were being targeted by police and were 

ignored. Only finally, when a cannon-load of data was shot across the bow, did people begin to say, ’Oh, yeah, I guess it’s going on.’ ’’

Blacks confront far more discrimination than either Latinos or Asians, the survey 

found. And black men report facing prejudice more often than black women. Nearly 

half—46 percent—of all blacks said they had experienced discrimination in the past 

10 years; including 55 percent of black men and 40 percent of black women. 

Two years ago, Ali Barr, a television engineer in Atlanta, said he was in Baltimore on business and went to a jazz bar and restaurant with friends to get something to eat. 

‘‘It was a white bar, but it featured a black jazz band,’’ Barr said. ‘‘But from the 

moment we walked in, we could feel the hostility. All the patrons were white. The 

waitress comes over and tells us we couldn’t sit in the section we-were in. She said 

it was closed until later in the evening. 

‘‘But there were only 10 people in the bar, so we moved to the other section and 

we asked for coffee. She came back and slammed the coffee down and came back 

with the manager. The manager said we were not welcome here and that our money 

wouldn’t be accepted. 

‘‘The manager pointed to a sign saying that management reserved the right to 

serve who they wanted. We were asked to leave. All we wanted was something to 

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eat. We were totally discriminated against. That will always be my memory of 

downtown Baltimore.’’

Four in 10 Latinos and Asians reported that they, too, had been discriminated 

against in the past 10 years. 

Laticia Villegas, 27, owns a children’s clothing store in Fort Worth. She recently 

tried to write a check at a supermarket. The white clerk refused to let her borrow 

or even touch her pen. Villegas fished around in her purse and wrote the check. 

‘‘It is culture shock,’’ Villegas said. ‘‘I’ve never been discriminated against until 

I moved to Dallas [from San Antonio]. I was offended and surprised; I didn’t expect 

it. I’m not used to being treated this way. I thought we got past this, but we haven’t, 

and I know my [1-year-old] daughter will have to grow up experiencing these kinds 

of things because she does not have blond hair and blue eyes.’’

About 1 in 5 whites—18 percent—also report being the victims of discrimination 

in the past 10 years. Ten percent said they had been denied a promotion because 

of their race or ethnicity, 14 percent said they had received poor service because of 

their race, and an equal proportion reported having been called names or insulted. 

Rose Evans, 26, of Aurora, Colo., said she has frequently been the target of racially prejudiced comments from Latinos and blacks. 

Evans grew up West Denver, a predominantly Mexican American and Asian 

neighborhood where ‘‘I was picked on quite a bit. You know, ’stupid white girl’ and 

worse things in Spanish. But my stepdad is Mexican American, and I learned to 

let it roll off of me.’’

Earlier this year, her 9-year-old daughter confronted prejudice. ‘‘A group of little 

black girls at school were picking on her a lot, calling her ’honky and stuff. She 

would come home from school crying. I told her to ignore them, they were just ignorant people.’’

But the bullying continued, and Evans requested a meeting with school officials 

and the mother of the girl who had been particularly vicious to her daughter. 

‘‘The mother became very hostile and started calling me ‘white trash’ and ‘‘honky 

and other stuff,’’ Evans said. ‘‘I told her children aren’t born ignorant, they acre 

taught it, and I saw where her daughter got it from.’’

Assistant director of polling Claudia Deane contributed to this report.

Statement of National Association of Police Organizations, Inc., 

Washington, D.C. 

fSTATEMENT OF POLICY AND POSITION 

GENERAL STATEMENT

Representative John Conyers, Jr. (D–MI) has introduced H.R. 2074 and Senator 

Russ Feingold (D–WI) has introduced S. 989 both entitled the, ’End Racial Profiling 

Act of 2001,’ which would require the Justice Department to perform a nationwide 

study of alleged racial profiling on the nation’s highways and roads. If JIM THOMPSON enacted’ the bill would require the Attorney General to conduct a study of 

stops for Treasurer routine traffic violations, forcing police officers to record data 

such as: the number of individuals stopped, including race, ethnicity, age and gender; the reason for the stop (the alleged criminal behavior or traffic offense); warnings and citations issued; weather there was a search (and if so, any items seized); 

weather there was an arrest; and the duration of the stop. The bill contains a very 

limited prohibition on the use of the data, which could result in data being used 

against municipalities and officers in lawsuits or against officers in disciplinary actions. 

The National Association of Police Organizations (NAPO), representing more that 

220,000 sworn law enforcement officers through 4,000 unions and associations from 

across the nation, is strongly opposed to this legislation. This or any similar legislation which would monitor law enforcement officers and require them to obtain detailed data on alleged racial profiling by officers 1) is not needed; 2) is likely to increase hostility to officers; 3) is unlikely to produce any meaningful data; 4) is likely 

to threaten officers and their agencies with more frivolous lawsuits, seeking not only 

damages but possible strict regulation of when and who officers may stop; and 5) 

would have other serious long term consequences for law enforcement by deterring 

officers and preventing them from carrying out their responsibilities effectively and 

fairly. 

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Let it be emphasized that NAPO condemns any instances of blatant racial discrimination by law enforcement officers. This includes pulling over an automobile, 

searching personal property or detaining an individual, when based on the individual’s race or ethnicity and not on probable cause. While we believe these instances 

are few and limited, any such incident is inexcusable. 

NAPO urges law enforcement and members of the general public, including individuals who belong to a racial or ethnic minority, to come together to discuss any 

isolated patterns of racial profiling and to search for solutions rather than create 

problems by enacting this legislation. We must always be mindful of the progress 

of law enforcement in reducing crime. We must always ask the question: As the nation’s violent crime rate continues to decrease, is it acceptable to change those aggressive police practices consistent with constitutional requirements, that have contributed to this significant reduction in crime? 

POINTS IN SUPPORT OF NAPO’S POLICY AND POSITION

The legislation is not needed as there are already adequate protections and remedies in place against racial, ethnic, gender or age profiling. The presumption underlying the legislation is fallacious; the constitutional requirements of probable cause 

and articulable reasonable suspicion serve as checks on stops, searches and detentions to prevent racial, ethnic, gender or age profiling; and there are adequate remedies in current law to investigate and punish officers that engage in such profiling. 

The Bill is based on two incorrect presumptions: first, that law enforcement officers routinely throughout the United States stop racial and ethnic minorities of 

color for traffic violations purposely to discriminate against such individuals, and 

second, that the number of traffic citations issued or arrests made (for more serious 

offenses, such as drug trafficking) are highly and unjustifiably disproportionate, as 

compared to numbers of citations for individuals whose color is white. These premises are erroneous. Other than a few anecdotes in a few states, there is no evidence 

to substantiate the premise for this bill. Often police officers do not know the race 

or ethnic background of an individual when they see a traffic offense, especially at 

night. Officers are trained to immediately pursue a vehicle for a traffic infraction 

or other violation, irrespective of the driver’s appearance. 

There are essential constitutional safeguards against racial profiling during traffic 

stops in place, specifically ‘probable cause’ to believe that an offense or crime has 

been committed or ‘articulable reasonable suspicion’ that an individual is dangerous. 

Violations of those standards can result, not only in the exclusion of evidence for 

one charged with a crime, but a federal civil rights lawsuit against the officer or 

the officer’s department or disciplinary actions against the officer, as does often 

occur. 

Individuals should understand that being stopped by law enforcement officers 

when they have good reason to do so, should not cause those stopped to believe that 

their rights were violated, even if they are inconvenienced. The application of constitutional safeguards means that whenever drivers of any race, ethnicity, gender 

or age have been pulled over by officers with probable cause to make those traffic 

stops, and it turns out that the drivers have done nothing wrong, they are then free 

to go. As a society, sometimes law-abiding citizens will be inconvenienced when police aggressively enforce laws and investigate crimes. 

The U.S. Department of Justice has significant authority to investigate allegations 

of law enforcement officer misconduct and violations of constitutional rights to determine if there is a ’pattern or practice’ of misconduct, which deprives individuals 

of constitutional rights. (Currently, the Department has several investigations underway.) If the Department finds such misconduct, it may collect data on traffic 

stops and sue the government agency involved to obtain an injunction or other relief. The Department has brought lawsuits, obtaining consent decrees in Pittsburgh, 

PA, Steubenville, OH and Los Angeles, CA, memoranda of understanding in Battle 

Creek, MI and Montgomery County, MD and a non-discrimination resolution in 

Portland, OR. The 19 investigations initiated by the Department of Justice does not 

constitute a national problem in the 19,000 plus state and local law enforcement 

agencies. 

If passed into law, the nationwide study and officer reporting form provided by 

the bill would lengthen traffic stops, encounter resistance from drivers and passengers, subject officers to potential hostility and possible violence from drivers and 

passengers, and would place other burdens on law enforcement officers. 

To obtain and verify the information required by the bill, a police officer would 

often have to ask a driver (and any passengers) about race or ethnicity and age. 

The officer could be expected to meet resistance and hostility to such questions, beVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00115 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
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1Since the advent of the automobile, approximately 300 law enforcement officers are known 

to have died during traffic stops and approximately 80% of those officers were shot to death. 

cause many individuals would likely consider such questions about personal characteristics as highly offensive. 

The proposed questions could turn a traffic stop into a dangerous situation, by escalating the tempers of the occupants when race or ethnicity is brought into the discussion. Pulling over a car for a traffic violation is one of the most vulnerable moments for a law enforcement officer. The statistics on the numbers of officers killed 

or feloniously assaulted in the line of duty during traffic stops confirm this danger.1

An officer’s life would be put at risk, being subjected to hostility, ridicule and potential violence, in which case the officer might conceivably have to act in self-defense. 

The time necessary to fill out these forms would take away from other law enforcement efforts. For each stop the officer would fill out a detailed form with information including the reason for the stop, whether information about immigrant status was asked, whether a search was instituted and, if so, how it was conducted, 

the rationale for the search and the nature of any contraband. 

It is unclear whether the data would be accurate and comprehensive and what 

the study would prove. There is a serious question as to whether the study would 

be worthwhile to prove or disprove police profiling based on race, ethnicity, age or 

gender. As proposed, this study would have a weak statistical basis. 

If the study focuses on inner city police departments, it would indicate a greater 

number of minorities stopped as compared with suburban police departments, reflecting the population makeup of those communities. The study would reveal the 

obvious. If a study was focused on a college town, the study would show a greater 

number of individuals between the ages of 18–25 being stopped. 

It is inconceivable that the data will be accurate unless an officer is able to verify 

racial and ethnic background and the violator responds cooperatively. If some of the 

drivers stopped for a traffic offense do not want to cooperate and provide this personal information, the data would be skewed and inaccurate. 

The bill threatens to produce unnecessary and frivolous litigation against the regulation of law enforcement officers and their agencies. Similar legislation proposed 

and passed by the U.S. House of Representatives in 1998 was amended to limit the 

use of the data obtained from the study to only research and statistical purposes, 

and to prohibit, its use for any other purpose, including any legal or administrative 

proceeding to establish inferences of racial discrimination. Under the current legislation, lawsuits could be brought against municipalities, their police or sheriffs’ departments and individual officers or to impose disciplinary action on officers, based 

on data from the study and not on identified cases of discrimination. The current 

legislative proposal would also enable a group of lawyers to obtain the data, supported by organizations actively eliciting information against law enforcement who 

make their living by suing police officers across the country and then recovering 

their legal fees from the defendants. 

If enacted, this legislation could very well lead to unofficial practices by law enforcement officers of reverse discrimination or unofficial parity based on race, ethnicity, age or gender, both during the study and afterwards. We do not believe that 

most Americans want their government agencies to adopt and apply these practices 

which could include, 1) a lower standard of probable cause being applied to Caucasians and a higher standard being applied to individuals of color or, 2) a percentage 

limitation on the number of traffic tickets written or individuals detained because 

of suspected criminal activity. In summary, law enforcement officers across the 

country could be deterred from making traffic stops or conducting searches when 

there is justification to do so, solely based on identifying characteristics of drivers. 

This would send the wrong message to criminals across the country and would likely increase crime.

Statement of National Council of La Raza, Washington, D.C. 

fI. INTRODUCTION 

Chairman Feingold, Ranking Senator Hatch, and the other Senators of the Subcommittee, on behalf of the National Council of La Raza (NCLR), thank you for 

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1The terms ‘‘Latino’’ and ‘‘Hispanic’’ are used interchangeably to refer collectively to Mexicans, 

Puerto Ricans, Cubans, Central and South Americans, and others of Spanish and Latin American descent. Hispanics can be of any race. 

holding this hearing on an issue that is very important to the Latinol 1 community 

in the Unites States. NCLR is the largest national Latino civil rights organization, 

which serves as an ‘‘umbrella organization’’ for more that 250 local affiliate community-based organizations (CBO’s) and 30,000 associate members. In addition to providing capacity-building assistance to our affiliates and essential information to our 

individual associates, NCLR serves as a voice for all Hispanic subgroups in all regions of the country. 

I appreciate the opportunity to submit this statement for the record in support 

of a thorough revision of the law regarding racial profiling. First, this statement begins with a brief overview of Hispanic demographics in order to provide the Subcommittee with an accurate portrayal of the population about which we are speaking. Second, this statement explains our concerns regarding racial profiling as a law 

enforcement tactic and its effects on the Latino community. Next, it describes particular concerns with respect to reliance on racial profiling as a strategy to enforce 

immigration law, and emerging collaborations among federal, state, and local law 

enforcement. Finally, it concludes with recommendations on how we as a nation can 

respond at all levels—federal, state, and local—to better serve and protect all Americans from unnecessary and counter productive harassment and intimidation by law 

enforcement. 

II. HISPANICS AND RACIAL PROFILING: THE SCOPE OF THE PROBLEM 

A. DEMOGRAPHIC STATUS OF THE U.S. LATINO POPULATION

According to data from the 2000 Census, Hispanics constitute the largest minority 

group in the U.S.; currently, more than one in eight (12.5%) Americans is Hispanic. 

An increasingly large component of the nation’s population (35 million) is Hispanic. 

Latinos are composed of several distinct subgroups: Mexican Americans, Puerto 

Ricans, Cubans, and Central and South Americans. The latest data also show that 

the majority of Hispanics are U.S.-born, or have U.S. citizenship. According to the 

latest data, (39.1%) or 12.8 million Latinos were born outside of the U.S. Among 

Hispanic children under 18, more than four-fifths are native-born. Latinos tend to 

be young; for example, more than one-third of the Latino population is under 18 

years old; nearly one in six (16.2%) of the K–12 student population is Hispanic. 

More than three-fourths of the Hispanic American population is concentrated in 

seven states: California, Florida, New York, Illinois, Arizona, New Jersey, and 

Texas. As the Hispanic community grows, Latinos are also living in some counties 

within ‘‘nontraditional’’ states. For example there were three states where the Hispanic population more than doubled between 1-990 and 2000: Georgia (increased by 

299.6%), North Carolina (393.9% growth), and Tennessee (278.2% increased). 

Latinos are also the most urbanized of the minority populations: 91.5% of Hispanics 

live in major cities such as Los Angeles, Houston, New York, Chicago, and Miami. 

Given their share of the overall population, and the rapid growth and youthfulness 

of the Hispanic population, the status of Latinos is increasingly important to the 

future of all Americans. 

This demographic snapshot provides an important context for the discussion of racial profiling, which NCLR believes is becoming more problematic in the Latino community. NCLR believes that stereotypes and misinformation have played a role in 

the increase of inappropriate police practices against minority groups, including 

Latinos, and that accurate information about the Hispanic community is critically 

needed. Latinos are moving into ‘‘non-traditional’’ cities, states, and regions in which 

other minority groups and/or White Americans predominantly reside. On its face, 

such a trend may not appear significant; however, many of these areas lack the infrastructure, organizations, and other civic participation mechanisms that allow 

Latinos to address increasing inter-ethnic tensions and assist in promoting integration into the American mainstream. The Latino community is struggling with these 

very issues in the already-established communities of Los Angeles, Houston, Chicago, and New York, and if it is difficult in those areas, one can only imagine the 

devastating effect law enforcement abuse and harassment has in these other areas 

where Hispanics are only now emerging as a major presence. 

B. THE EFFECTS OF RACIAL PROFILING ON THE LATINO COMMUNITY

The use of racial profiling tactics not only violates civil rights, but also undermines the ability of law enforcement to effectively enforce the law. Specifically, 

114

when an individual’s ethnicity is used to establish a cause for suspicion of a crime, 

then that individual—along with family members, friends, and neighbors—loses 

trust in the integrity of law enforcement. As a result, public safety is placed in jeopardy because members of these communities fear harassment and abuse by the police and therefore are unlikely to seek police help when they legitimately need it, 

i.e., to report a crime, serve as a witness or on a jury, or otherwise cooperate with 

law enforcement. 

The problem of racial profiling broadly manifests itself in the Latino community 

and cannot be dismissed simply as a matter of a few isolated incidents of poor judgment. For example, Latinos have been systematically targeted for ‘‘dragnet’’ tactics 

by local and state law enforcement officers, and those same tactics have been applied and used, as a matter of formal policy, by some federal law enforcement 

agents. 

NCLR often receives reports from Latino individuals who have been victimized by 

police and federal agents overstepping the bounds of the Constitution in the name 

of drug and immigration enforcement. The vast majority of cases, however, goes unreported. Even fewer actually result in successful civil rights litigation or investigation by agencies responsible for enforcing civil rights. 

1. Local Law Enforcement 

Local law enforcement relies on a widespread number of tactics including traffic 

stops, ‘‘stops and frisk’’ approaches, and others to enforce the law. Such tactics cross 

the line when they have a disproportionate or disparate impact based on race or 

ethnicity. Below we cite just a few of the cases we are aware of involving racial 

profiling against Latinos by local law enforcement. 

In 1999, the American Civil Liberties Union (ACLU) filed a federal lawsuit on behalf of a San Jose lawyer who says the California Highway Patrol (CHP) violated 

his civil rights when officers stopped him and other Hispanics allegedly because of 

their ethnicity. According to the lawsuit, the CHP pulled over the attorney and at 

least five other Hispanic drivers on the Pacheco Pass portion of Highway 152 while 

carrying out its federally-funded drug-interdiction program, ‘‘Operation Pipeline.’’

According to a CHP Sergeant, the CHP canine units searched nearly 34,000 cars 

in 1997. Only 2% of them were carrying drugs. In other states, up to 95% of all ‘‘Operation Pipeline’’ searches have been found to be ‘‘dry holes.’’

Early this year, charges were brought before the U.S. Department of Justice 

against New Jersey State Troopers for routinely stopping Black and Hispanic drivers on state highways solely because of their skin color. Several state troopers were 

also found guilty of falsifying in their reports the race and ethnicity of drivers 

stopped. The troopers admitted that they did this so as not to give the appearance 

that they were only pulling over Black and Hispanic drivers. 

In 1992, an Orlando Sentinel investigation into stops on an interstate highway 

found that 5% of the drivers on that highway were dark-skinned, yet nearly 70% 

of those stopped were Black or Hispanic. The stops of Black and Hispanic drivers 

also lasted, on average, twice as long as stops of White drivers. Only nine out of 

the 1,000 stops resulted in a traffic ticket. 

In the past, the Louisiana State Police Department used a training film that explicitly exhorted officers to use traffic stops to conduct narcotics searches of ‘‘males 

of foreign nationalities, mainly Cubans, Colombians, Puerto Ricans, or other 

swarthy outlanders.’’ [United States v. Thomas, 787 F. Supp. 663, 676 (E.D. Tex. 

1992)] 

In Colorado’s Eagle County Sheriff’s Department, race, ethnicity, and out-of-state 

license plates were common drug-courier profile factors in criminal investigations. 

After the use of such a profile was determined to be unconstitutional, they have 

switched to using traffic enforcement stops as a means of catching drug traffickers, 

but have not stopped the use of racial profiles. [United States v. Laymon, 730 F. 

Supp. 332, 337 (D. Colo. 1990)] 

A December 1999 report by New York’s Attorney General on the use of ‘‘stop and 

frisk’’ tactics by the New York City Police Department revealed that between January 1998 through March 1999, 84% of the almost 175,000 people stopped by NYPD 

were Black or Hispanic, despite the fact that these two groups compose less than 

half of the city’s population. 

The New York Attorney General’s report on NYPD stop and frisk tactics revealed 

that stops of minorities were less likely to lead to arrests than stops of White New 

Yorkers—the NYPD arrested one white New Yorker for every eight stops, one Hispanic New Yorker for every nine stops, and one black New Yorker for every 9.5 

stops. 

115

2. Federal Law Enforcement 

The use of racial profiling is not limited to local law enforcement agencies. Federal agencies such as the Immigration and Naturalization Service’s (INS) Border Patrol, Inspections and Investigations divisions, Drug Enforcement Administration 

(DEA), and the U.S. Customs Service have been found to conduct community-wide 

‘‘sweeps,’’ searches, and seizures without proper reasonable suspicion, relying heavily on ethnic background and race as an exclusive or primary factor. The use of racial profiling has been justified by some due to the inaccurate perception that 

Blacks, Latinos, and other minorities are more likely to commit crimes—especially 

immigration and drug-related offences—than Whites. 

a. INS 

According to a May 1, 2001 New York Times article, a review of 37 INS work site 

raids in the district of New York City showed that agents frequently cited skin 

color, use of Spanish, foreign accents, and clothing ‘‘not typical of North America’’

as primary evidence that workers were likely to be undocumented. An example 

found in the review disclosed that an INS agent conducting a surveillance of delicatessen, between 34th and 35th Streets in New York City, reported that some workers appeared to be of South or Central American descent. Some spoke Spanish, the 

agent noted, and others spoke English ‘‘with a foreign accent.’’ The Times study confirmed that the INS explicitly uses ethnicity to guide its enforcement efforts, a tactic 

the agency has denied using. 

On January 29, 1998 in Bethesda, Maryland, waitress Allegra Foley was preparing tables for lunch at the Thymes Square Cafe when plainclothes INS officers 

entered the restaurant. They headed directly to the kitchen, where they questioned 

a number of Latino employees; six were arrested. Foley was particularly upset that 

employees at the Cafe were clearly targeted for questioning based on their perceived 

racial appearance. In a notarized affidavit, Foley testified that ‘‘at no time did they 

ever question a white, black, or Asian employee on duty at the restaurant. . .with 

sole exception of the manager. . .who. . .voluntarily provided his green card.’’

On July 9, 1997, in Portland Oregon, INS agents in unmarked vehicles began arresting almost 50 Latino day laborers who were waiting for work on street corners 

along East Burnside Street. The agents did not identify themselves and arrested the 

majority of people without asking questions. Most of the agents were dressed in 

plainclothes, although some of them later donned Border Patrol jackets when their 

colleagues arrived in bulletproof vests and uniforms. ‘‘I only saw one man questioned. It happened right in front of me. The INS agent came right up close to his 

face, leaned over him, and asked him where he was from and to show his papers. 

The worker didn’t answer but started to fumble in his wallet in an effort to extract 

a document and was arrested before he could get it out. The entire interchange took 

less than a minute. Only Latino men were arrested. Other people on the scene, including a light-skinned Mexican, were not even questioned,’’ recalled Lucy Bernard, 

a witness from the Workers’ Organization Committee in Portland. 

INS agents conducted a raid in Jackson Hole, Wyoming in August 1996, in which 

153 suspected illegal immigrants were rounded up and detained. According to press 

reports, some of the suspects were picked up off the street merely because their skin 

was brown. It was reported that agents picked one man off his bicycle as he rode 

down the street; ‘‘They failed to ask him to stop, they simply ran him down, took 

him off his bike, put him in handcuffs, and stuffed him in the police car,’’ stated 

an eyewitness. Some of those picked up had large numbers written on their arms 

with black felt pen, as though they were cattle. Further press reports stated that 

18 of those picked up were ‘‘hauled away in a dirty horse trailer lined with fresh 

manure.’’ In the end, 40 of the ‘‘suspects’’ were released after proving they were citizens or documented workers. 

b. Border Patrol 

The New York Times reported that many residents of South Texas believe that 

the Border Patrol agents in airports and roving patrol units systematically stop and 

detain too many blameless Hispanics. A federal judge, Filemon B. Vela, was stopped 

by Border Patrol when driving with three of his staff members (two of whom were 

also Latino) because, he was told, there were too many people in his car. The problem is pervasive enough to cause Cameron County Judge Gilberto Hinojosa to state 

that his community feels like ‘‘occupied territory’’ by the Border Patrol, that it ‘‘does 

not feel like we’re in the United States of-America.’’

Border Patrol agents on roving patrols in Arizona have also been stopping motorists without reasonable suspicion that violations of immigration law have occurred. 

In fact, using information gathered through the use of ‘‘I–44’’ forms that Border PaVerDate Feb 1 2002 14:50 Aug 09, 2002 Jkt 080475 PO 00000 Frm 00119 Fmt 6633 Sfmt 6621 C:\HEARINGS\80475.TXT SJUD4 PsN: CMORC
116

2 NCLR is grateful for the assistance of the Mexican American Legal Defense and Educational 

Fund (MALDEF) in providing the latest information on the litigation. 

trol agents are advised to fill out after traffic stops, a Federal Circuit Court of Appeals in the class action Durgin v. De La Vina found that:

Plaintiffs produced evidence of a pattern and practice of stopping persons 

without proper ‘‘reasonable suspicion’’ in the numerous I–44s that they submitted. Many of these reports do not describe facts that give rise to reasonable suspicion, and many of the reports list similar and repetitive reasons 

for stopping various persons. Plaintiffs also produced evidence of other persons of Hispanic appearance whom the Border Patrol had stopped, allegedly 

without reasonable suspicion. The Border Patrol had stopped some of these 

persons on numerous occasions.

The Border Patrol’s lack of clear record keeping indicates an inclination to hide 

a pattern and practice of profiling. In the Durgin case, Border Patrol agents did not 

fill I–44 forms after stopping the plaintiffs. The Court quoted an internal training 

memorandum that shows that Border Patrol agents are strongly advised to fill out 

I–44 forms after every traffic stop they conduct because:

. . .written descriptions of ‘‘reasonable suspicions’’ are important not only to win 

the case against the suspect, but also to prove that agents acted properly in the 

event of civil lawsuits. . .[I]f the Border Patrol and/or individual agents are sued 

in a civil lawsuit alleging a pattern of discriminatory vehicle stops. . .[agents’] written description of ‘‘reasonable suspicion’’ will be critical to prove that the agents 

acted properly.

Agents are trained to use the forms to protect against potential frivolous allegations of civil rights abuses. Thus, any instance where an agent does not fill out an 

I-44 should raise a concern that ethnic and racial profiling is being relied upon instead of the reasonable suspicion standard required for a lawful stop. 

c. Customs Service 

A March 2000 GAO report on the U.S. Customs Service found that Black, Asian, 

and Hispanic female U.S. citizens were four to nine times more likely than white 

female U.S. citizens to be subjected to X-rays after being frisked or patted down. 

In reported cases regarding federal bus and train sweeps, overwhelmingly the defendants are Black or Hispanic. From January 1, 1993 to August 22, 1995, of 55 

cases in which the defendant’s race could be identified, Hispanics were 20% of those 

stopped and searched. According to the courts, if no ‘‘seizure’’ takes place, law enforcement agents do not need to explain how they select their targets. A federal 

court upheld the case allowing the stop and search of a ‘‘roughly dressed black 

male.’’ [United States v. Weaver, 966 F.2d 391, 396 (8th’ Circuit 1992)] 

C. COLLABORATION BETWEEN FEDERAL AND LOCAL/STATE LAW ENFORCEMENT

The INS and other federal law enforcement agencies have significantly stepped 

up efforts in the last several years to enforce immigration laws along the U.S./Mexico border, inland, and at the workplace. Efforts such as increased workplace raids, 

an escalating number of armed INS agents along the border and the interior, and 

more joint operations between INS and other state/local law enforcement agencies 

have served to undermine the physical safety and constitutional and civil rights of 

Latino communities throughout the United States. NCLR has noted that numerous 

civil rights violations and abuses have been committed in the process of enforcing 

immigration law. Incidents of illegal or inappropriate seizures, traffic stops based 

solely on ethnic appearance, arrests without cause, deprivation of food and water 

or medical attention, and actual physical abuse have been recorded. Immigration enforcement by local police, even under the guise of enforcement of separate criminal 

statutes, compromises and detracts from the true mission of local police of ensuring 

public safety, and worst of all, it undermines public trust and confidence. Many victims of abuse and mistreatment by immigration authorities are U.S. citizens or legal 

permanent residents. Examples of joint collaboration between federal and local/state 

law enforcement agencies follow: 

The Mexican American Legal Defense and Educational Fund, (MALDEF) 2 has 

filed litigation in connection with allegations of widespread civil rights violations by 

local police involved in immigration enforcement in northwest Arkansas. According 

to one of the plaintiffs, the Rogers Police department has been turning over ‘‘suspects’’ to the INS for immigration investigation. One of the claims is that of a 

woman who, after calling the police for protection from her abusive husband, was 

investigated as to her immigration status, arrested, and turned over to the INS. 

117

3One proposed MOU between DOJ and Salt Lake City was rejected by the City Council after 

extensive protest from Latino community leaders and other civil rights organizations. 

After a federal judge in Ohio ordered the INS’ Border Patrol to stop making discriminatory traffic stops (Ramirez v. Webb, later affirmed by the 6th Circuit Court 

of Appeals), the INS requested officials in the Ohio Highway Patrol to conduct the 

stops instead. Consequently, a federal court ordered the Highway Patrol to stop illegally confiscating green cards from legal migrant workers during profile-based traffic stops [Farm Labor Organizing Committee vs. Ohio State Highway Patrol]. 

In Chandler, Arizona in 1997, local police collaborated with Border Patrol agents 

in illegal traffic stops to find undocumented immigrants. What they found instead 

was a multimillion dollar lawsuit on behalf of U.S. citizens and permanent residents 

who were repeatedly harassed and detained by local police officers—without probable cause by their own admission—because they ‘‘looked Mexican.’’ Arizona Attorney General Grant Woods concluded ‘‘without a doubt that residents of Chandler, 

Arizona were stopped, detained, and interrogated by officers. . .purely because of 

the color of their skin.’’ Some of the plaintiffs have settled the case while other 

claims are still pending. 

On January 29, 1997, in Crescent City, Florida, INS agents, Putnam County 

Sheriff’s deputies, and Crescent City police officers conducted a nighttime joint operation in search of undocumented immigrants. They set up a highway checkpoint and 

conducted a sweep of a trailer park and public housing facility largely inhabited by 

Hispanic residents. Although the police explained to the press that they were 

searching for drugs, there were no drug arrests made, nor were any drug searches 

conducted. An eyewitness, a worker at the Farmworkers’ Association of Florida, 

lives in the neighborhood between two White families whose homes were not raided. 

His home was approached twice. His wife was home but did not respond to the 

knock on the door. Approximately 50 other homes with Hispanic residents were 

raided. The police and Border Patrol would knock, announce ‘‘Police!’’ and barge in 

after the door was opened, without consent and without cause. The officers also 

stopped Hispanics in the street and requested immigration documents without 

cause. A 12-year-old U.S. citizen was arrested in the street and taken miles from 

home for not having ‘‘papers.’’ When police realized their ‘‘mistake’’ they let him go 

and told him where he could catch the bus home. Border Patrol agents were involved, but one of them told local newspapers that he would never again participate 

in such a horrible operation. 

Currently, in the Chicago Metropolitan Area, suburban police officers are increasingly detaining and questioning Hispanic Americans for immigration purposes. The 

local police in Summit, a southwestern Chicago suburb, detained a young U.S. citizen for several hours because he had a thick Spanish accent and could not prove 

he was a U.S. citizen. Another young Mexican American U.S. citizen was actually 

turned over to the INS detention facility by a suburban police officer, but was released by federal agents after a few questions. ‘‘The arrest followed a pattern of routine traffic stops, generally of Hispanic men in their 20s, followed by questioning 

and detention because, as one suburban police chief put it ‘they look illegal’,’’ according to the Chicago Tribune. 

On May 27, 1998 in Minneapolis Minnesota, just after 7:00 p.m., five police cars 

arrived at southeast Minneapolis’ Holmes Park—a popular hangout for some of the 

city’s Latino community—and drove over street curbs and grass until they had surrounded the volleyball courts. Dozens of Latinos in the park were subjected to more 

than an hour of degrading interrogation; many were searched and frisked, with legs 

spread and hands placed against squad cars. According to Curtis Aljets, INS District 

Director for Minnesota and the Dakotas, the raid was a joint operation between police and the INS to find the ‘‘twenty most egregious aggravated felons’’ from a computer-generated list of immigrants. Following the arrests, 14 people were deported; 

only one of the detainees had a criminal record. 

Courts have condemned INS and local police departments in several other similar 

cases, including Velazque v. Ackerman (Director of INS, San Jose, CA.); de Haro v. 

City of St. Helena; Mendoza v. U.S. City of Farmersville; and Cedillo-Perez v. Adams

(Chief of Police of Katy, TX)). 

In 1996 Congress established a formal Memorandum of Understanding (MOU) 

process between the Department of Justice and state or local government to guide 

such INS-state/local collaborations. However, none of the programs cited above were 

conducted under the auspices of an MOU, which would have assumed review by 

DOJ’s Civil Rights Division and training in immigration law for state/local offices.3

Thus, these collaborations are taking place informally, without any formal review 

or guidance from the Department of Justice. 

118

III. OVERVIEW AND RECOMMENDATIONS 

A. OVERVIEW

As this brief review shows, the Latino community is disproportionately targeted 

by law enforcement. The use of racial profiling tactics not only violates civil rights, 

but undermines trust between the Latino community and the police. Racial profiling 

disparately impacts the Latino community significantly because it is not only targeted by local and state law enforcement agencies, but also by federal agencies including the INS and Customs Service. Joint operations between local/state and federal law enforcement agencies are becoming a routine method of law enforcement 

resulting in wholesale civil rights violations. 

Racial profiling unfortunately is not a new problem. The Latino community has 

been struggling with racial profiling and law enforcement abuse for too long. Legislation was introduced without avail in the past two Congresses to study, address, 

and put an end to racial profiling. However, never before has the political climate 

been more favorable for enacting racial profiling legislation. President Bush acknowledged during his inaugural address that racial profiling was a national problem, and he indicated his firm commitment to the elimination of this discriminatory 

practice. Later, Attorney General Ashcroft pledged to work with Congress to take 

the necessary measures to address racial profiling. 

In that spirit, the National Council of La Raza strongly supports the End Racial 

Profiling Act of 2001 because it strives to eliminate racial profiling comprehensively, including racial profiling by federal agencies, such as the Immigration and 

Naturalization Service (INS), Drug Enforcement Administration (DEA), and Customs Service, and joint federal-state/local operations. It is crucial that federal law 

enforcement be held to the same high standards as state and local law enforcement, 

so that all communities, including the Latino community, can rely on law enforcement to provide protection and safety for everyone. 

B. RECOMMENDATIONS

To address the growing problem of racial profiling, NCLR:

Urges Congress to pass and the Administration to sign the End Racial 

Profiling Act of 2001. The Act, introduced by Senators Feingold (D–WI), 

Clinton (D–NY), Corzine (D–NJ), and Representatives Conyers (D–MI), 

Morella (R–MD), Ferguson (R–NJ), Greenwood (R–PA), and Johnson (R–IL) 

would ban the practice of racial profiling by federal law enforcement agencies, and provide incentives to state and local law enforcement agencies to 

eliminate this practice. Additionally, it requires the collection of data on 

routine investigatory activities; establishes procedures for receiving, investigating, and responding to claims of racial profiling; and requires training 

of law enforcement agents and holding them accountable for engaging in racial profiling. In addition, the Act offers incentive grants that encourage 

compliance, development, and implementation of practices such as the acquisition of technology to facilitate data collection, training to prevent racial 

profiling, and a fostering mechanism that would make the interaction between law enforcement and the community more respectful.

Urges President Bush and Attorney General Ashcroft to take proactive, interim steps to address racial profiling. We urge them to reaffirm their commitment to the eradication of this social problem by declaring and enforcing 

a ban on racial profiling by all federal agencies. Further, we recommend the 

Administration to require collection of data relevant by all federal law enforcement agencies.

Encourages Congress and the Administration to provide adequate resources 

to the Department of Justice’s Special Litigation Section to enable it to fulfill 

its task of pursuing ‘‘pattern and practice’’ lawsuits against police agencies 

nationwide which commit widespread abuse. While many in Congress and 

the White House have said that they want to ensure the prosecutors have 

all the resources they need to enforce U.S. laws in these cases, funding of 

the Civil Rights Division’s work in this areas remains inadequate.

Calls on the Department of Justice to end collaboration between INS and 

other law enforcement agencies in conducting enforcement operations. Any 

existing cooperation agreement between the INS and local/state law enforcement should be terminated, and the Attorney General should decline 

to pursue additional agreements.

Urges the INS to establish an improved mechanism to address complaints 

about abuse of authority in the enforcement of federal immigration laws. 

119

The federal government has the authority and obligations to ensure that 

enforcing the nation’s immigration laws do not result in abuse. A body, such 

as a ‘‘civilian review panel’’ with the ability and resources to accept and investigate complaints of federal law enforcement abuse and to make recommendations for remedial action, should be established to help ensure 

government accountability and deter further civil rights violations. Such a 

panel could be a step forward in addressing the ever-increasing number of 

complaints filed against immigration enforcement agents.

I thank Chairman Feingold for his leadership and vision on this issue that deeply 

affects the Latino community.

fNATIONAL TROOPERS COALITION

ALBANY, NEW YORK 12207

August 1, 2001

The Hon. Patrick J. Leahy 

Chairman, Senate Committee on the Judiciary 

224 Senate Dirksen Office Building 

Washington, DC 20510

Dear Chairman Leahy:

I write to express the opposition of the National Troopers Coalition (NTC) to S. 

989, End Racial Profiling Act of 2001, to be heard this morning by the Subcommittee on Constitution, Federalism, and Property Rights. As you know, the NTC 

is composed of state police and highway patrols from throughout the United States 

and has a membership of approximately 45,000 of all ranks, trooper through colonel. 

As background, criminal profiling is an effective tool for law enforcement. Local, 

state, and federal law enforcement agencies have been utilizing criminal profiling 

as a proven and valuable technique to identify criminals for decades. As an example, 

‘‘Criminal Drug Interdiction Profiling’’ is a law enforcement practice whereby identifying drug traffickers is an essential component of an officer’s training. Police officers are, in fact, taught to observe the individual for characteristics or indicators 

of drug courier activity. It is ‘‘Reason not Race’’ that directs the attention of police 

officers to drug smugglers, ‘‘Criminal Drug Interdiction Profiling’’ is rooted in statistical reality, not based on race or other such factors. 

At the same time, I am not aware of any law enforcement agency that teaches 

or condones racial profiling as an institutional endeavor, nor does the NTC condone 

the use of race alone as the rationale for police action. 

The NTC is on record opposing data collection to address this issue. We believe 

it is a misuse of valuable resources at every level of government. Rather, we support 

the use of resources to increase awareness of existing policies, both internally and 

externally, increased training and education for law enforcement, and financial support for greater use of video and audio recording devices in police vehicles. 

For these and other reasons, we again stress our opposition to the approach contained in this legislation. 

Sincerely,

SCOTT REINACHER

f President

Article by Susan Sachs, New York Times, May 1, 2001 

FILES SUGGEST PROFILING OF LATINOS LED TO IMMIGRATION RAIDS

Before immigration agents raided Al’s Deli on Seventh Avenue in Midtown Manhattan four years ago, they considered several factors. One was an anonymous tip 

alleging simply that 10 of the 20 or so workers were illegal Mexican immigrants. 

Another was their own surreptitious observations about the employees. 

An agent who conducted a surveillance of the delicatessen, between 34th and 35th

Streets, reported that some workers appeared to be of South or Central American 

descent. Some spoke Spanish, the agent noted, and others spoke English ‘‘with a foreign accent.’’

That was enough to prompt a raid of the deli in search of illegal immigrants. 

120

The raid was a modest law enforcement success for the Immigration and Naturalization Service’s New York district, which covers New York City and Long Island. 

It netted three illegal immigrants from Mexico and one from India from among the 

dozen workers present. 

But the operation also followed a familiar pattern in the New York district, one 

that senior immigration officials say may have violated the federal agency’s guidelines for avoiding ethnic or racial profiling. In this and other cases, agents appeared 

to rely almost exclusively on Latino appearance or foreign accents—common attributes in New York and other American cities—to reach a conclusion that workers 

could be illegal immigrants. 

A review by The New York Times of 37 I.N.S. work site raids in the district 

showed that agents frequently cited skin color, use of Spanish, foreign accents and 

clothing ‘‘not typical of North America’’ as primary evidence that workers were likely to be undocumented. 

Agents are required to have specific facts in hand or a reasonable suspicion to 

question someone’s legal status, like nervousness when confronted with the immigration agency or unfamiliarity with the surroundings. Appearance may be one factor, but courts and the agency itself have said it is discriminatory to stop and search 

a person based on foreign appearance alone. 

The files reviewed represent 20 percent of the district’s 187 work site cases during 

a 30-month period from January 1997 through June 1999. The Immigration and 

Naturalization Service itself selected the cases as a random sample and provided 

them to Unite, the garment Workers’ union, as part of a settlement of a lawsuit alleging selective enforcement. The union provided them to The Times. 

All but a handful of the 37 raids did result in the arrests of illegal workers and, 

unsurprisingly considering the criteria used, nearly everyone arrested during that 

period was Latino. And while some investigations grew out of detailed accusations 

by an informed tipster, in 30 of 37 cases a raid was carried out after agents made 

observations as simplistic as those at Al’s Deli. 

‘‘Obviously, mere nationality and mere ethnicity by themselves, unsupported by 

other facts, are absolutely no basis for us to determine a person is illegally in the 

United States,’’ said Joseph Greene, the assistant I.N.S. commissioner for investigations in Washington. ‘‘There’s a whole body of jurisprudence that has heightened 

everybody’s sensitivity to that,’’ he added. 

As the nation has become more diverse, largely because of an influx of legal immigrants from Latin America and Asia, the role that ethnic profiling may play in the 

enforcement of immigration laws has become an issue of mounting concern for advocates and the agency itself. 

Nationality is clearly an element to be considered when looking for illegal immigrants: all illegal immigrants, by definition, are foreigners. But simply looking or 

sounding foreign, civil rights groups have argued, is not a sufficient basis for suspicion in a country where illegal immigrants may not differ in race, ethnicity or national origin from everyone else around them. 

And as in other instances of profiling—whether on the New Jersey Turnpike or 

the streets of Harlem—there are costs to the innocent people swept up. In the New 

York raids and others like them, fully legal people are subjected to the humiliation 

of proving their status, sometimes after being jailed. 

That happened to Maria Espinoza, a worker from Ecuador who was arrested during an immigration agency raid on the SPD Molding factory in Long Island City, 

Queens, in September 1999. She told agents she was a legal permanent resident, 

but was detained with other Latino workers and told she would be deported. 

‘‘At that moment, I did not carry my green card, butt the people did not believe 

me,’’ Mrs. Espinoza recalled this week. ‘‘They handcuffed me and arrested me.’’ A 

computer check eventually confirmed her innocence, and she was released after 

spending three hours in detention. 

A number of legal challenges have been brought recently in several states, including Arkansas and California, accusing the authorities of singling out Latinos for 

questioning about their immigration status. 

A federal judge in Ohio recently ruled that state highway patrol officers, acting 

as de facto immigration agents, violated people’s rights by routinely pulling over 

Latino drivers to question their immigration status. In one instance, legal migrant 

workers were stopped and had their green cards taken by officers who said they 

were fraudulent. 

Courts have generally given I.N.S. officers themselves greater latitude to stop people for immigration checks, particularly near the border, but still set constitutional 

limits. The Supreme Court has ruled, for example, that I.N.S. agents working near 

the Mexican border may use their suspicion of someone’s Mexican ancestry as one 

121

of the grounds for stopping that person, although it legally cannot be the only 

grounds. 

In three more recent cases in California, federal judges said immigration agents 

committed ‘‘egregious’’ violations of the Fourth Amendment when they stopped individuals. solely on the basis of their Latino appearance or foreign-sounding name. 

‘‘There may or may not be an argument for using ethnicity or national origin as 

one of the predicates for enforcement actions along the border,’’ said Charles 

Kawasaki, vice president of the National Council of La Raza, a Latino group in 

Washington. ‘‘But you just can’t make that case in the interior of the country,’’ he 

added. 

In its own rules, the immigration service specifically warns its agents not to assume that illegal immigrants can be identified by foreign appearance, language or 

ethnic characteristics.‘‘This is not science,’’ said Mr. Greene, the agency enforcement 

chief. ‘‘It is art.’’

Edward J. McElroy, the New York district director, would not talk about the enforcement program. The district issued a statement saying that all of its work site 

raids are based on a ‘‘reasonable suspicion’’ that an employer is violating immigration laws. 

Reasonable suspicion, the statement said, ‘‘can include the officer’s training and 

experience, information from reliable informants and other communications, and or 

any other factors that in their totality would validate the investigation.’’

The immigration service, however, arrested almost no one but Latinos during the 

30-month period covered by the random sample. According to a summary released 

as part of the settlement, Mexicans, Ecuadoreans and others from Central and 

South America accounted for 96 percent of the 2,907 people arrested in the district’s 

187 work site raids. That is a far bigger proportion than Latinos represent in either 

the city’s illegal or legal population. 

The preponderance of Latinos stands out even more sharply when the type of 

company that was raided is taken into consideration. Most of the businesses were 

garment factories, where employers’ groups, unions and the immigration service all 

say that about half the employees are Asian, some of them illegal. 

Yet in two and a half years of enforcement actions, the New York district arrested 

only two Chinese people during any of its work site raids. 

While it is not surprising that immigration officers found illegal immigrants from 

Latin America working in the kinds of low-wage businesses they raided, it is not 

clear why they found Latinos almost exclusively. 

‘‘They are playing a numbers game,’’ speculated Wing Lam, director of the Chinese Staff and Workers Association, which represents many undocumented Chinese 

workers. ‘‘It’s easier to arrest a Latino and send him back than it is to send someone 

all the way back to China.’’

The New York files provided by Unite afforded a highly unusual opportunity to 

analyze the conduct of the local Immigration and Naturalization Service district, 

which fights to keep its operations secret. The tip sheets, investigative memos and 

other documents—with the names of agents and immigrants blacked out for privacy—provide at least a written record of how agents built their cases. 

In many files there is no evidence that agents based their decision to raid a particular business on anything other than nonspecific tips and their own deductions 

drawn from the workers’ ethnicity. 

Liverpool Industries in Brooklyn, for instance, was raided in August 1997. Documents in the file showed that the company caught the attention of the immigration 

agency when it applied for permission to hire foreign workers to take jobs as brake 

operators. During a surveillance, an agent noted seeing several ‘‘Latin individuals’’

speaking Spanish and wrote in a report that ‘‘it was determined that some of these 

individuals were most likely undocumented aliens.’’

Two of the 70 employees were arrested in a raid. 

In another case, the district received an anonymous tip that 15 workers at a Midtown garment factory called BNA Fashion were illegal immigrants from Mexico and 

Korea. The agent who conducted a surveillance at the factory reported that some 

employees were heard speaking Spanish. 

‘‘Many individuals,’’ the agent also wrote, ‘‘had dark black hair, medium skin color 

and wore clothing typical of Mexican and Ecuadorean descent.’’

The factory was raided. Seven of the 35 workers were arrested, 3 from Ecuador 

and 4 from Mexico. 

An agent checking a tip about undocumented workers at H.C. Contracting, a Midtown garment factory, noted that Spanish music was playing on a radio and 40 to 

50 of the 70 employees ‘‘appeared to be of Central or South American descent.’’

Those workers, the agent added, may support the allegation of illegal immigrants. 

122

‘‘The I.N.S. seems to equate Latino physical and cultural characteristics with illegality—that is, with being an undocumented immigrant,’’ said Michael J. Wishnie, 

a director of the Immigration Law Clinic at the New York University Law School. 

The clinic represents two union members who are fighting deportation on the 

grounds that they and other Latinos were improperly singled out for arrest during 

the H.C. Contracting raid in 1998. 

In a few instances, agents made similar observations but hesitated to draw the 

same conclusions. Observing a Manhattan garment factory in 1997, an agent said 

that about 35 workers appeared to be of Mexican or Central or South American descent. ‘‘here was no way of determining,’’ the agent wrote, ‘‘the legal status of any 

individual at this time.’’

Over the past two years, with labor shortages affecting many industries, the immigration service has largely abandoned workplace raids as a means of finding illegal immigrants. 

Nationally, the number of raids dropped by half last year. In New York, only 125 

work site cases were completed last year compared with 263 the year before. Arrests 

by the New York immigration district from raids also declined sharply, from 1,400 

in 1997 to 166 in 2000. 

Enforcement efforts, immigration officials said, are now focused on better sealing 

the border with Mexico, snaring immigrant smugglers and catching illegal immigrants involved in organized crime. 

http://www.nytimes.com 

GRAPHIC: Photos: Case files and memos of immigration and Naturalization Service agents in the New York district suggest that work site raids are often based on 

language or appearance. (pg. B1); A file from a workplace surveillance by the immigration agency’s New York office. Over 30 months, Central and South Americans accounted for 96 percent of the 2,907 people arrested in the district’s 187 work site 

raids. (pg. B6)

fDALEVILLE DEPARTMENT OF PUBLIC SAFETY, 

DALEVILLE, ALABAMA, 

July 31, 2001

Chairman Russell D. Feingold 

Subcommittee on Constitution, Federalism, 

and Property Rights 

U.S. Senate 

Washington, D.C. 20510

Ranking Member Strom Thurmond 

Subcommittee on Constitution, Federalism, 

and Property Rights 

U.S. Senate 

Washington, D.C. 20510

Dear Chairman heingold and Ranking Member Thurmond:

I am the director of Public Safety for Daleville, Alabama, a town of approximately 

4,653 residents. Accordingly, 1 dm responsible for law enforcement activities within 

my community. Approximately 25.4% of our population is African American, I am 

very concerned that S. 989, the .End Racial Profiling Act of 2001, will deter police 

officers in my community and others from effectively policing African American 

neighborhoods. 

While no police officer should stop, arrest, or treat any person differently just because of the color of his of her skin, There is not a single officer around who can 

fully and capably perform his or her job based on statutory formulas prescribed by 

Congress. The threat of being sued because proportions of people being stopped or 

arrested do not comply with lcderally-prescribed formulas is, again, dangerous. 

1 fear that lower income African American citizens, many of whom are elderly or 

are single parent families, art: most vulnerable to the dangers brought about by a 

retreat from their neighborhood. They need our protection most. We cannot give it 

to them if we are under the threat of being sued. 

I certainly urge you to address the evils associated with racial profiling, but nut 

in the harsh and constricting ways that this legislation prescribes. Please reject the 

mechanical, unwavering standard of this legislation. While we do rived to end racial 

profiling, I respectfully submit that this legislation is not the appropriate way in 

123

which to do it. Frankly, I feel that it may only serve to exacerbate, rather than ameliorate, the problem. 

Thank you for holding this hearing and for taking the time to consider my concerns over this well-intentioned, but practically misguided legislation. 

Sincerely, 

JIMMY L. SEATON

f Director, Daleville D.P.S.

Article by Jonathan Serrie, Fox News, July 27, 2001 

SEATTLE COPS, WARY OF RACE-PROFILING ACCUSATIONS, CUTTING BACK ON

MINORITY ARRESTS

SEATTLE—Amid charges of racism, many Seattle police officers say they are cutting back on the number of arrests they make in minority communities. 

Officers still respond to 911 emergency calls. But cops on the beat are ignoring 

many traffic violations and other minor offenses. 

This form of passive law enforcement—some are calling the cops ‘‘tourists in 

blue,’’—is not official policy, but the practice is growing among individual officers 

who fear more aggressive police work will be labeled as ‘‘racial profiling.’’

Sgt. Mike Edwards, president o1 the Seattle Police Officers Guild, describes the 

practice as NCNC—‘‘No contact. No complaint.’’

Seattle police have been inundated with complaints of ‘‘racial profiling’’ following 

the recent fatal shootings of two black suspects. 

On May 31, a white policeman shot work-release escapee Aaron Roberts while the 

suspect was dragging the officer’s partner from the side of his car. 

In April 2000, David John Walker was shot while walking down a sidewalk brandishing a knife. Walker was also carrying a gun and had fired shots outside a nearby grocery store. 

In both cases, police say the suspects ignored repeated warnings to surrender. In 

the Walker case, there was even local 1V news footage confirming the officer’s story. 

Yet both shootings prompted hundreds of protesters, black and white, to take to the 

streets accusing Seattle police of murder and genocide. 

Such accusations carry a lot of weight with leaders of this city, which prides itself 

on civility. But many rank-and-file cops say weak-kneed politicians are affecting 

their ability to serve and protect. 

Seattle police were ordered to hold back during this year’s Mardi Gras protests, 

when a white man was beaten to death by an angry mob while trying to rescue a 

woman under attack. 

Most of the suspects arrested in the disturbances were black, and the cops were 

subsequently accused of targeting minorities. 

Racial profiling has become a popular charge among critics of police, who say officers place a disproportionate emphasis on patrolling minority neighborhoods and are 

more likely to be suspicious of minorities. 

‘‘There’s a bad element everywhere,’’ said Seattle resident Richard Mitchell. ‘‘The 

patrols should be just as balanced in the predominantly white neighborhoods as 

they are in the black neighborhoods.’’

Sgt. Edwards disagrees. 

‘‘The officers are there because they’re being called there. The minority communities, the poor communities, the areas that have the highest incidence of crime 

have the greatest need for police,’’ Edwards said. 

But some officers are starting to wonder whether aggressive police work is worth 

the risk of being accused of racism and being investigated by city officials. 

The problem is not unique to Seattle Police around the country say the reputations, and even careers, of men and women in blue are often jeopardized by the racial politics of those who see law enforcement in black and white.

f124

Article by Stuart Taylor Jr., National Journal, April 24, 1999 

RACIAL PROFILING—THE LIBERALS ARE RIGHT

While fueled by demagogic rhetoric and political opportunism, the. current uproar 

over allegedly racist police practice in New York City and elsewhere has spotlighted 

one dearly abusive practice that moderates, conservatives, and, indeed, police chiefs 

should join liberals in assailing: racial profiling. That is the apparently widespread 

police habit of using skin color or ethnicity as a factor in deciding whom to stop and 

search for residence of crime. 

Just this week, New Jersey Gov. Christine Todd Whitman admitted that a 

111page internal review had confirmed a 1996 judicial ruling that some state police 

officers had engaged in racial profiling in deciding which cars to search during traffic stops on the turnpike. 

Around the country, thousands of minority-group members have been humiliated 

by police stops and searches, often for conduct no more suspicious than ‘‘driving 

while black’’ or walking the streets of their communities. This, in turn, has helped 

to breed a deeply corrosive mistrust of law enforcement. 

The full extent and the perniciousness of racial profiling are difficult to grasp for 

those of us who have not been targeted. The practice is virtually invisible to whites, 

except in the minority of cases in which police find illegal drugs or guns and make 

arrests. Almost all police organizations deny that they condone racial profiling. It 

is easily camouflaged by nonracial pretexts for searching cars and pedestrians; and 

it is sometimes confined with proper police work. 

All this, plus the assumption that falling crime races mean that the police must 

be doing something right, helps explain why moderate and conservative leaders 

have so far expressed relatively little concern about racial profiling. But the result 

has been to leave a void to be filled by race-card-carrying police-bashers such as Al 

Sharpton (sponsor of the Tawana Brawley hoax) and Jesse Jackson (who recently 

accused police in Mew York City of declaring ‘‘open season on blacks’’). 

This issue is too important to be left to opportunists such as these. More law enforcement officials and politicians alike should recognize that whatever short-term 

benefits racial profiling may produce in catching a few criminals are far outweighed 

by the long-term costs. The biggest cost is the poisoning of police relations with 

.minority-group communities, and thus with potential witnesses and juror in the 

communities most in need of effective law enforcement. 

While there have been few systematic studies of racial profiling, the scattered 

data collected so far are striking. 

In New Jersey, the report released on April 20 showed that 77 percent of motorists searched on the turnpike were black or Hispanic, even though 60 percent of 

those stopped were white. 

In Maryland, according to statistics compiled by state police as part of a 1995 

court settlement, 70 percent of the drivers searched on a stretch of Interstate 95 

from January 1995 through September 1996 were black—even though blacks made 

up only 17 percent of all drivers (and of all speeders) on that road, according to a 

related study by the American Civil Liberties Union. 

Thus, an innocent black driver was four times as likely to be searched as an innocent white driver. And this was after the state police had (in the court settlement) 

issued a written policy barring race-based stops. 

Studies of car stops in places ranging from Volusia County, Fla., to Eagle County, 

Colo., also reflect dramatic racial disparities. And in Louisiana, a state police training film a few years ago told officers to use traffic stops to do drug searches of 

‘‘males of foreign nationalities, mainly Cubans, Colombians, Puerto Ricans, or other 

swarthy outlanders.’’

The most telling evidence of the extent and offensiveness of race-baled stops and 

searches may be the personal accounts of the many black and Hispanic people who 

see such stops as emblematic of a discriminatory criminal justice system. 

‘‘You cannot talk to an African-American who has not either had this experience 

or had a relative go through it,’’ sacs David A. Harris, a law professor at the University of Toledo, whose research on car stops and searches has included interviews 

with large numbers of middle-class blacks. ‘‘It’s a humiliating and angering experience,’’ Harris reports. ‘‘One man said it’s like someone pulling your pants down 

around your ankles. . .And any African-American who has teenage kids, especially 

male kids. . .they’ve had ‘the talk’ with them, about what to do when not if, whenthey are stopped. This is in the nature of instructions for survival.’’

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Is there any justification for racial profiling? Defenders of the practice point out 

that certain crimes are disproportionately committed by young black and Hispanic 

men-or by members of particular ethnic groups, such as Jamaicans or Colombiansand that police logically look for evidence where the criminals live, in the inner cities. 

Such rationales reflect the tendency of practitioners and critics alike to confuse 

racial profiling with a different phenomenon: the policies of police in places like New 

York City to patrol (and stop, and search) most aggressively in high-crime neighborhoods. When done with respect and sensitivity, this can produce safer communities 

and better community relations. When it veers into wholesale intimidation, and indiscriminate frisking of young men on the street, it can become indistinguishable 

from racial profiling. 

Even critics acknowledge that racial profiling is not entirely irrational in treating 

young black inner-city men as presumptively more worthy of attention than, say, 

grandmothers. Jesse Jackson himself implied this when lie said in 1993: ‘‘here is 

nothing more painful to me at this stage in me life than to walk down the street 

and hear footsteps and start thinking about robbery-then look around and see somebody white and feel relieved.’’

A citizen such as Jackson might be justified in keeping a prudent distance from 

a group of black youths in certain settings. But a police officer would not be justified 

(absent some particularized basis for suspicion) in picking up a black youth, standing him against a call. and frisking him. 

While ‘‘it is rational to be more suspicious of a young black man than an elderly 

white woman.’’ in the words of a trenchant new book be David Cole, No Equal Justice: Rare and Class in the American Criminal Justice System, that ‘‘does not make 

it right. First, the correlation of race and crime remains a stereotype, and most 

blacks will not conform to the stereotype. . .A police officer who relies on race in 

stopping and questioning individuals is therefore likely to stop many more innocent 

than guilty individuals. Second, our nation’s historical reliance on race for invidious 

discrimination renders suspect such consideration of race today, even if it might be 

‘rational’ in some sense.’’

And outside of the inner cities, it’s unclear that such practices as race-based traffic stops on major highways-in which police are usually looking not for murderers, 

rapists, or robbers but for drugs-produce airy significant law enforcement benefit at 

all. 

Meanwhile, the costs mount; as innocent people who are searched come away feeling mistreated. This takes an incalculable toll on the willingness of many black and 

Hispanic citizens to cooperate with police, to provide leads, to testify as witnesses, 

and, when they serve as jurors, to convict guilty people. 

What can be done about racial profiling? The practice is too deeply ingrained in 

police culture, and too easily camouflaged, to be eradicated by legislation or lawsuits. The best remedy may be for police chiefs to train their officers to shun such 

profiling, and to recruit more black and Hispanic officers. 

In the short run, we need more studies to expose the extent of racial profiling: 

San Diego and San Jose, Calif., are both doing studies of their own police forces. 

Political pressure, lawsuits, and enlightened self-interest should spur other cities 

and states to do the same. 

Meanwhile, Congress should give careful consideration to a proposal by Rep. John 

Conyers Jr., D–Mich., to require the justice Department to collect and study racial 

and ethnic data about the drivers stopped and searched by state and local police. 

Racial statistics can, of course, be manipulated to draw misleading inferences of 

discrimination, such as the wrong—headed notion that elite colleges discriminate 

against minorities by giving weight to Scholastic Aptitude Test scores in admissions. 

But unlike the case of SAT scores, racial profiling involves real discrimination. And 

on this issue, sunlight may be the best disinfectant.

Article by William Tucker, Weekly Standard, June 18, 2001 

fTHE TRAGEDY OF RACIAL PROFILING

IT’S UNJUST-AND IT WORKS. 

Last week, Hillary Rodham Clinton joined a growing chorus of lawmakers in calling for a federal ban on racial profiling. ‘‘Profiling is not an effective law enforcement tool,’’ said New York’s junior senator. ‘‘The vast majority of African Americans 

126

William Tucker is a writer living in Brooklyn. His most recent article for The WEEKLY 

STANDARD was ‘‘The Myth of Alternative Enemy’’ (May, 21, 2001). 

and Hispanics who are stopped or searched have committed no crime.’’ As this 

movement gathers steam, it’s worth recalling one of the incidents that fueled the 

debate. 

In November 1999, Academy Award-winning actor Danny Glover came to New 

York and found he couldn’t get a taxicab. Angry, he called a press conference the 

next day to denounce ‘‘racial profiling.’’ Within hours the New York Daily News was 

inundated with faxes and letters from middle-class blacks complaining of similar 

problems. Makeup artist Donyale McRae, cousin of the late jazz singer Carmen 

McRae, said he could not get a taxi while dressed in a tuxedo after attending the 

Grammy Awards at Radio City Music Hall. ‘‘I can hail a cab until I’m blue in the 

face,’’ complained a 62-year-old publishing executive. ‘‘They will not stop.’’ Al Sharpton promptly filed a class action against the Taxi and Limousine Commission. Former mayor David Dinkins chided mayor Rudolph Giuliani for not doing 

his job. The New York Times-acknowledging that most of the drivers are immigrants-concluded: ‘‘Racism is perpetuated by cabbies whose attitudes have 

roots. . .in colonial rule.’’ The drivers themselves claimed not to be bigots but admitted to racial profiling. Their defense was that they were justified in making racebased assumptions, because African Americans were more likely to take them into 

bad neighborhoods, rob them, or beat them for the fare. Giuliani sent undercover 

officers into the neighborhoods to catch the cabbies in the act, and several driversall from the Middle East or East Asia-were arrested. 

Then another trend began. Within weeks of Glover’s press conference, a string of 

cab drivers were killed by passengers. Two were murdered in November and December and two more in early 2000. When a 48-year-old Venezuelan immigrant, the father of five, was shot in his cab on February 24, police commissioner Howard Safir 

announced the formation of a special task force to investigate what the Daily News 

called the ‘‘wave of killings.’’ Meeting with police in Manhattan, 400 drivers agreed to allow police to stop cabs 

in traffic at any time to make sure they were not in trouble. Research showed that 

while only 22 licensed cab drivers, who operate mainly in midtown Manhattan, had 

been killed over the last decade, 230 livery drivers-who operate in poorer neighborhoods had been victimized. By March the ‘‘profiling police’’ were forgotten. Instead 

undercover officers were posing as livery drivers in East New York and the South 

Bronx. Even so, during two particularly grim weeks in April, four more drivers were 

murdered. During the first five months of 2000 ten drivers were killed one more 

than in all of 1999. Not until the city government spent $7 million helping livery 

services install bulletproof partitions or security cameras in their cars did the attacks subside. 

Now, it’s impossible to prove that the crackdown on ‘‘racial profiling’’ by cabbies 

led to the subsequent crime wave, but the sequence is suggestive. Though infuriating to honest customers, the cabbies’ discrimination is not irrational. And the effort to stamp it out adds to the danger of driving a cab. This is a cautionary tale 

for those who would outlaw racial profiling by police. Because the evidence suggests, 

for all that good liberals like Hillary Clinton want to believe otherwise, that racial 

profiling is an effective law enforcement tool, though it undeniably visits indignity 

on the innocent. 

Indeed, racial profiling is a predictable outcome of the stepped-up law enforcement of the 1990s. Violent crime rates have fallen in the last decade as in no other 

period in American history. In 1991 there were 24,700 murders in America. In 1999 

there were 15,530 with a larger population. There are no doubt a number of factors 

at work, but one obvious one is the new style of law enforcement, pioneered in New 

York, where police seek to control ‘‘disorder’’ as well as crime. An outgrowth of 

George Kelling and James Q. Wilson’s ‘‘broken windows’’ theory of the importance 

of public order, this labor intensive policing of the streets is effective, but intrusive. 

And it is unfortunately law-abiding blacks who often get caught in the crossfire. 

Those stories about well-dressed corporate lawyers being stopped for walking 

through their own suburban neighborhoods or ‘‘driving while black’’ are true. A few 

months ago I discovered a burglar in the living room of our Brooklyn home. After 

I ushered him out the door, the police arrived and began driving me around the 

neighborhood looking for the suspect. Halfway down the block, the detective started 

shouting, ‘‘Is that him? Is that him?’’ He was pointing to my friend and neighbor, 

a gray haired 55-year-old black man who is president of our block association. 

Police officers usually come from working class backgrounds and seem unable to 

make distinctions between street criminals and middle-class blacks. Instead of using 

race as one of a number of cues, they over-generalize. Obviously, there is room for 

127

improvement. Yet the key questions remain: Are the police justified in paying more 

attention to blacks as potential criminal suspects? And will a broad-brush campaign 

against racial profiling undo the progress made against crime over the last ten 

years? 

Downplaying this dilemma, liberals simply assert that the perception of black 

over representation in crime is a result of ‘‘racial profiling.’’ New York State attorney general Eliot Spitzer issued a 1999 report concluding that blacks and Hispanics 

were ‘‘disproportionately represented’’ in 10,000 stop-and-frisks by New York City 

police. Disproportionate to what he didn’t specify. Blacks constitute 44 percent of 

the population and were 49 percent of those stopped and frisked. They were also 

identified by the victims as perpetrators in 60 percent of all street crimes and constituted 55 percent of those arrested. From these numbers, you can more accurately 

argue that blacks were under represented in stop-and-frisks. 

Writing for the New York Times, David Cole and John Lamberth, two of the leading spokesmen on ‘‘racial profiling,’’ argue that, ‘‘even on its own terms, racial 

profiling doesn’t work.’’ As proof they note that ‘‘73 percent of those stopped and 

searched on a [Maryland] section of Interstate 95 were black, yet state police reported that equal percentages of the whites and blacks who were searched, statewide, had drugs or other contraband.’’ Yet these equal arrest percentages are prima 

facie evidence that the police were doing their jobs fairly. If they were mistaken in 

their assumptions about black drivers, there should have been a lower percentage 

of arrests among the blacks searched. 

In December, former attorney general Janet Reno stopped the first federal execution in almost 30 years,when she and former president Bill Clinton became concerned that the killer, drug kingpin Juan Raul Garza, was subject to discrimination 

because of anti-Hispanic racial profiling. Yet the federal statute under which Garza 

was tried applies to murders committed by drug dealers, and law enforcement officers up and down the line agree that the drug trade is now controlled by AfricanAmerican, Caribbean, and Latin American groups. As Heather Mac Donald noted 

in her seminal work on racial profiling in the Manhattan Institute’s City Journal: 

‘‘The notion that there are lots of heavy-duty white dealers sneaking by undetected 

contradicts the street experience of just about every narcotics cop you will ever to 

talk to.’’ (Garza is scheduled to be executed June 19, but there will probably be another stay as the justice Department continues its investigation.) Meanwhile the 

American Civil Liberties Union and the NAACP want to abolish capital punishment 

altogether because 43 percent of the people on death row are black. Yet blacks committed 52 percent of the murders in America over the past quarter century and are 

arguably under represented on death row-for reasons we’ll see in a minute. 

Discussions of racial profiling almost inevitably are based on an assertion that racial and ethnic groups should be subject to procedures in the criminal justice system 

based on their representation in the population rather than by the number of crimes 

they commit. But the justice system is not the House of Representatives. There is 

no constitutional guarantee of equal representation in the criminal dockets. Blacks 

are over represented for one simple reason-they commit many crimes at multiples 

above other racial groups. This propensity toward violent crime is probably the nation’s number one social problem. Yet liberals, out of either willful naivete or 

chutzpah, choose to pretend it doesn’t exist. Senator Robert Torricelli, for instance, 

made this claim at the confirmation hearings of attorney general John Ashcroft: 

‘‘Statistically, it cannot be borne out that certain ethnic or racial groups disproportionately commit crimes. They do not.’’ It would be interesting to know where he 

is getting his statistics. 

Here are some of the ones he apparently is not familiar with. Murder is a common 

barometer for violent crime because it is nearly always reported. The homicide rate 

in America in 1999 was 5.7 per 100,000, more than three times the rate of other 

industrialized countries. The figure has dropped from 9.8 per 100,000 in 1991, and 

has not been this low since 1966. 

Yet these national figures mask an extraordinary differential between black and 

white homicide rates. In 1999, the murder rate for white offenders was 3.5 per 

100,000double that of some European countries. The rate among blacks was 25.5, 

seven times the white rate. In 1991, the disparity was even greater-5.7 for whites 

and 50.4 for blacks. The victimization rate is similarly disproportionate. A young 

black male living in Detroit or the District of Columbia from age 16 to 25 is half 

as likely to ‘‘die in combat’’ as was a U.S. soldier during World War II. While murder rates among whites have been in a slight but steady decline over the past 20 

years, murder rates among blacks have fluctuated wildly. Indeed, the dramatic rise 

and fall of murder rates over the past 25 years is almost entirely a reflection of 

black crime rates. 

128

The figures for other violent crimes reflect the same pattern. While only 13 percent of the population, blacks commit 46 percent of all robberies and 21 percent of 

rapes. The victims of rape and armed robbery survive, and reports of the racial identity of the offender are highly reliable. Blacks are arrested for rape and robbery in 

the same proportions, indicating there is no bias in the system. More than 68 percent of all crimes of violence occur among blacks. The term ‘‘among blacks’’ is very 

precise. Interracial crimes usually get more press coverage, but that’s because they 

are less common. More than 85 percent of murders are intraracial. Black-on-black 

killings are 42 percent of all killings, while white-on-white killings are 46 percent. 

Only 15 percent of white victims were murdered by blacks, and only 6 percent of 

black victims were murdered by whites. 

It has been argued that whites do not have to resort to violence, and that they 

commit their crimes in a white collar venue. ‘‘Some will rob you with a six-gun, 

some with a fountain pen,’’ as the old song goes. But this turns out to be untrue 

as well. Although under represented in the white-collar work force, blacks commit 

more than 30 percent of all fraud, forgery, and counterfeiting and 25 percent of all 

embezzlements. In New York City recently, a black office worker was found to be 

robbing banks on his lunch hour. His coworkers had often remarked on his remarkable resemblance to the ‘‘Wanted’’ pictures they had seen posted in neighborhood 

banks. 

This pattern is so pervasive that people become inured. Here, for example, is a 

chronicle of all the murders reported in the Daily News from a period of one week, 

chosen randomly by throwing a dart at a calendar (early May, as it happens).

• A 65-year-old black man was killed in Harlem when he was caught in the 

crossfire between two drug gangs. 

• A 42-year-old black man in Brooklyn was stabbed and killed by his black 

girlfriend. 

• A 54-year-old black man in the Bronx shot and killed a 37-year-old black 

vagrant when he found him vandalizing his car. 

• A 17-year-old Hispanic man was charged with beating to death his 

girlfriend’s 2-year-old son. 

• An 11-year-old Hispanic girl was raped and killed in her apartment 

building by a 43-year-old black ex-convict who lived in the next-door apartment. 

• A 32-year-old black female livery driver was shot and killed on the job 

by her Hispanic ex-boyfriend. 

• A black Brooklyn teenager was fatally stabbed during a street argument. 

• A white woman and two white men were shot execution-style in her 

apartment in Manhattan during a drug robbery. The woman, who once had 

a bit part in Dirty Dancing, had dealt marijuana for years. Two black exconvicts were identified as the suspected killers. 

• The fire department discovered the body of a black woman in a vacant 

lot. 

• An 80-year-old white woman in Greenwich Village was stabbed to death 

in her apartment. A few days later, a 28-year-old black female drug addict 

was arrested. The woman had befriended the drug addict and often let her 

use her phone. 

• A newborn black baby was found dead under the boardwalk at Conev Island. The mother was being sought.

During the same week, the FBI gunned down a 35-year-old Pakistani fugitive in 

a midtown hotel. The man was wanted for kidnapping a 17-year-old girl in Las 

Vegas and subsequently killing a man during a carjacking. Also, the daughter of 

Bronx borough president Fernando Ferrer complained that she had been racially 

profiled after being stopped for a traffic violation. 

Why is racial profiling seen as such a critical issue among all this mayhem? The 

main reason, I think, is the tendency of any group to externalize evil. It is much 

more reassuring to perceive violence and evil coming from without than within. 

Thus, the killing of a single black man by a group of mostly white police officers 

is remembered years afterwards while the day-to-day mayhem goes virtually unnoticed. 

Is there anything that can be done to stem this tide of violence? Continued law 

enforcement has already brought big dividends. It is an open question whether those 

dividends will continue in the face of a national crusade against racial profiling. Police are likelier to throw up their hands and tolerate greater disorder than they are 

to be aggressive and risk accusations of profiling. 

But there is one place where the justice system does egregiously and visibly discriminate, and it is overdue for attention by crusaders targeting racial injustice. 

129

Studies have shown that prosecutors, judges, and juries are six times less likely to 

impose capital punishment when the murder victim is black rather than white. This 

probably helps to explain why blacks are six times more likely than whites to be 

murder victims. It is also why black convicts are under represented on death row. 

Most of their murders are committed against other blacks. 

During the 1930s, when similar, although less pervasive, violence engulfed Italian 

neighborhoods, cities often adopted a tacit policy not to lean too heavily on enforcing 

the law. ‘‘They only kill each other’’ was the byword. As long as killing was confined 

to other gangsters, the justice system turned a blind eye. Only when the violence 

spilled into the larger society was it punished. The same principle remains a constant temptation for police today, and the campaign against racial profiling will only 

encourage it. When blacks kill other blacks, the system is less responsive. 

Enforcing the death penalty for black-on-black murder would be the best way to 

break the back of the cycle of violence in black communities. It would also be highly 

embarrassing. It would explode the myth that violence comes from outside the black 

community and that bigoted law enforcement or white-on-black crime is the principal problem. More than 85 percent of the additional people put on death row 

would be black. 

It’s a painful and difficult decision for liberals and their African-American political 

allies to face. It’s certainly understandable why they prefer to go on hand-wringing 

over ‘‘racial profiling.’’

fVICTIMS OF CRIME AND LENIENCY, 

MONTGOMERY, ALABAMA, 

July 31, 2001

Chairman Russell D. Feingold 

Subcommittee on Constitution, 

Federalism, and Property Rights 

U.S. Senate 

Washington, D.C. 20510

Ranking Member Strom Thurmond 

Subcommittee on Constitution, 

Federalism, and Property Rights 

U.S. Senate 

Washington, D.C. 20510

Dear Chairman Feingold and Ranking Member Thurmond:

I am the Executive Director of statewide victim’s rights organization in Alabama. 

I have been apprised of S. 989—Racial Profiling and I am very disturbed over the 

content of this bill. We, too, abhor treating someone differently due to the color of 

their skin however, I am afraid this legislation will only create the very chasm it 

is intended to avoid. 

VOCAL. (Victims of Grime and Leniency) has been counseling, supporting and 

legislating for crime victims since 1982. Crime is color-blind, yet we know a majority 

of crime victims unfortunately, are minorities. I fear that S. 989 is so restrictive 

that law enforcement will become intimidated, be fearful of unwarranted reprisals 

and we will become a society with no protection at all. We cannot keep tying the 

hands of law enforcement and expect protection at the same time. Racial Profiling 

is deplorable but it should be dealt with more effectively than this bill provides. 

We ask that you prayerfully consider all crime victims as you hold this hearing 

and we hold you in our prayers as you weigh the pro’s and con’s of this legisiation. 

Respectfully,

MIRIAM SHEHANE

Executive Director

f130

Article by George F. Will, Washington Post, April 19, 2001

EXPOSING THE ‘MYTH’ OF RACIAL PROFILING

It is former senator Eugene McCarthy’s axiom: Anything said three times in 

Washington becomes a fact. So it now is a fact, universally attested and detested, 

that racial profiling is a widespread police tactic. Everyone says so, especially since 

the disturbances in Cincinnati set off a riot of television chatter, many of the 

chatterers having no direct knowledge of that city, or of policing. 

Even George W. Bush has made an obligatory genuflection at the altar of the conventional wisdom—‘‘Racial profiling is wrong and we will end it in America’’—and 

Attorney General John Ashcroft is encouraging the rapidly increasing trend of 

states requiring police to record racial data on traffic stops and searches. So who 

is Heather Mac Donald to cast decisive doubt on the prevalence, even the existence, 

of racial profiling? 

She is the indispensable journalist. If you question that characterization, you have 

not read her just-published collection of essays, ‘‘The Burden of Bad Ideas: How 

Modern Intellectuals Misshape Our Society.’’ Read it after you read her latest dissection of such an idea, ‘‘The Myth of Racial Profiling,’’ in City Journal, published 

by the Manhattan Institute. 

Mac Donald distinguishes, as anti-racial profiling crusaders rarely do, between 

‘‘hard’’ and ‘‘soft’’ profiling. The latter uses race as one factor among others in estimating criminal suspiciousness. As when, Mac Donald says, police have intelligence 

that in the Northeast drug-shipping corridor many traffickers are Jamaicans favoring Nissan Pathfinders. 

Charges of racial profiling usually arise from data about traffic stops, data that 

supposedly vindicate complaints that minorities are victimized merely because they 

are ‘‘driving while black.’’ But data about ‘‘disproportionate’’ stops of minority drivers are worthless without additional information that would be necessary to substantiate the charge that ‘‘too many’’ minority drivers are being stopped, searched 

and arrested. 

Most anti-profilers concede that most stops arise from an actual traffic Weekly 

Sections violation (e.g., the Pathfinder is speeding or has visible illegal defects, such 

as nonfunctioning lights). So, Mac Donald writes, it is pertinent to know whether 

disproportionate numbers of minorities drive recklessly or drive defective vehicles, 

or whether they drive at times when, or in places where, police are, for good law 

enforcement reasons, particularly attentive. And the validity of the data purporting 

to document ‘‘disproportion’’ depends on comparisons of the amount of driving done 

by different racial groups, so that stops per man-mile, rather than just stops per 

person, could be compared. Do minorities commit more of the kinds of traffic violations that most attract police attention? Data (about intoxication, and involvement 

in injury and fatality accidents) suggest so. 

Mac Donald says that of course there is ‘‘soft’’ profiling in the sense that some 

vehicles are stopped because, in addition to some infraction, the driver and the kind 

of vehicle and the direction and the number and type of occupants fit the profile 

of a drug courier. Yet anti-profilers insist, as does Sen. Robert Torricelli from the 

corridor state of New Jersey, that there is no evidence ‘‘that certain ethnic or racial 

groups disproportionately commit crimes. They do not.’’

But of course they do. And once a traffic stop is made, any subsequent search of 

the vehicle is apt to be triggered by behavioral cues (nervousness, conflicting stories) 

on the part of the vehicle’s occupants, cues having nothing to do with race or ethnicity. 

In 1999, during hysteria about profiling, then-Gov. Christine Todd Whitman fired 

New Jersey’s state police superintendent because he uttered a truism often confirmed by the Drug Enforcement Administration—that minority groups dominate cocaine and marijuana trafficking. Mac Donald reports that New Jersey’s state police 

‘‘no longer distribute a typical felony offender profile to their officers’’ because such 

profiles might contribute to what the state’s attorney general calls ‘‘inappropriate 

stereotypes’’ about criminals. Here ‘‘inappropriate’’ is a synonym not for ‘‘inaccurate’’

but for ‘‘inconvenient.’’

It is an awkward fact, but it is a fact even though there may not be three Washingtonians rash enough to utter it: Felons are not evenly distributed across society’s 

demographic groups. Many individuals and groups specialize in hurling accusations 

of racism, and police become vulnerable to such accusations when they concentrate 

their efforts where crime is. 

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If that accusation begins to control policing, public safety will suffer—especially 

the safety of minorities in violent and drug-infested neighborhoods. Those neighborhoods, where the primary complaint against the police usually is that they are too 

few in number and too tentative against predators, are not the neighborhoods where 

anti-profiling crusaders are apt to live.

Æ