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[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2132 Introduced in Senate (IS)]

108th CONGRESS
  2d Session
                                S. 2132

                     To prohibit racial profiling.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 26, 2004

 Mr. Feingold (for himself, Mr. Corzine, Mrs. Clinton, Mr. Lautenberg, 
Mr. Kennedy, Mr. Schumer, Mr. Durbin, Mr. Kerry, Mrs. Boxer, Mr. Reid, 
 Mr. Dodd, Ms. Cantwell, Ms. Mikulski, and Mr. Edwards) introduced the 
  following bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
                     To prohibit racial profiling.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``End Racial 
Profiling Act of 2004''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
                TITLE I--PROHIBITION OF RACIAL PROFILING

Sec. 101. Prohibition.
Sec. 102. Enforcement.
    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

Sec. 201. Policies to eliminate racial profiling.
 TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL 
                        LAW ENFORCEMENT AGENCIES

Sec. 301. Policies required for grants.
Sec. 302. Best practices development grants.
  TITLE IV--DEPARTMENT OF JUSTICE REPORTS ON RACIAL PROFILING IN THE 
                             UNITED STATES

Sec. 401. Attorney General to issue reports on racial profiling in the 
                            United States.
Sec. 402. Limitation on use of data.
           TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS

Sec. 501. Definitions.
Sec. 502. Severability.
Sec. 503. Savings clause.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
            (1) Federal, State, and local law enforcement agents play a 
        vital role in protecting the public from crime and protecting 
        the Nation from terrorism. The vast majority of law enforcement 
        agents nationwide discharge their duties professionally and 
        without bias.
            (2) The use by police officers of race, ethnicity, 
        religion, or national origin in deciding which persons should 
        be subject to traffic stops, stops and frisks, questioning, 
        searches, and seizures is improper.
            (3) In his address to a Joint Session of Congress on 
        February 27, 2001, President George W. Bush declared that 
        ``racial profiling is wrong and we will end it in America.'' He 
        directed the Attorney General to implement this policy.
            (4) In June 2003, the Department of Justice issued a Policy 
        Guidance regarding racial profiling by Federal law enforcement 
        agencies which stated: ``Racial profiling in law enforcement is 
        not merely wrong, but also ineffective. Race-based assumptions 
        in law enforcement perpetuate negative racial stereotypes that 
        are harmful to our rich and diverse democracy, and materially 
        impair our efforts to maintain a fair and just society.''
            (5) The Department of Justice Guidance is a useful first 
        step, but does not achieve the President's stated goal of 
        ending racial profiling in America: it does not apply to State 
        and local law enforcement agencies, does not contain a 
        meaningful enforcement mechanism, does not require data 
        collection, and contains an overbroad exception for immigration 
        and national security matters.
            (6) Current efforts by State and local governments to 
        eradicate racial profiling and redress the harms it causes, 
        while also laudable, have been limited in scope and 
        insufficient to address this national problem. Therefore, 
        Federal legislation is needed.
            (7) Statistical evidence from across the country 
        demonstrates that racial profiling is a real and measurable 
        phenomenon.
            (8) As of November 15, 2000, the Department of Justice had 
        14 publicly noticed, ongoing, pattern or practice 
        investigations involving allegations of racial profiling, and 
        had filed 5 pattern and practice lawsuits involving allegations 
        of racial profiling, with 4 of those cases resolved through 
        consent decrees.
            (9) A large majority of individuals subjected to stops and 
        other enforcement activities based on race, ethnicity, 
        religion, or national origin are found to be law abiding and 
        therefore racial profiling is not an effective means to uncover 
        criminal activity.
            (10) A 2001 Department of Justice report on citizen-police 
        contacts in 1999 found that, although African-Americans and 
        Hispanics were more likely to be stopped and searched, they 
        were less likely to be in possession of contraband. On average, 
        searches and seizures of African-American drivers yielded 
        evidence only 8 percent of the time, searches and seizures of 
        Hispanic drivers yielded evidence only 10 percent of the time, 
        and searches and seizures of white drivers yielded evidence 17 
        percent of the time.
            (11) A 2000 General Accounting Office report on the 
        activities of the United States Customs Service during fiscal 
        year 1998 found that--
                    (A) black women who were United States citizens 
                were 9 times more likely than white women who were 
                United States citizens to be x-rayed after being 
                frisked or patted down;
                    (B) black women who were United States citizens 
                were less than half as likely as white women who were 
                United States citizens to be found carrying contraband; 
                and
                    (C) in general, the patterns used to select 
                passengers for more intrusive searches resulted in 
                women and minorities being selected at rates that were 
                not consistent with the rates of finding contraband.
            (12) In some jurisdictions, local law enforcement practices 
        such as ticket and arrest quotas, and similar management 
        practices, may have the unintended effect of encouraging law 
        enforcement agents to engage in racial profiling.
            (13) Racial profiling harms individuals subjected to it 
        because they experience fear, anxiety, humiliation, anger, 
        resentment, and cynicism when they are unjustifiably treated as 
        criminal suspects. By discouraging individuals from traveling 
freely, racial profiling impairs both interstate and intrastate 
commerce.
            (14) Racial profiling damages law enforcement and the 
        criminal justice system as a whole by undermining public 
        confidence and trust in the police, the courts, and the 
        criminal law.
            (15) In the wake of the September 11, 2001, terrorist 
        attacks, many Arabs, Muslims, Central and South Asians, and 
        Sikhs, as well as other immigrants and Americans of foreign 
        descent, were treated with generalized suspicion and subjected 
        to searches and seizures based upon religion and national 
        origin, without trustworthy information linking specific 
        individuals to criminal conduct. Such profiling has failed to 
        produce tangible benefits, yet has created a fear and mistrust 
        of law enforcement agencies in these communities.
            (16) Racial profiling violates the equal protection clause 
        of the Constitution. Using race, ethnicity, religion, or 
        national origin as a proxy for criminal suspicion violates the 
        constitutional requirement that police and other government 
        officials accord to all citizens the equal protection of the 
        law. Arlington Heights v. Metropolitan Housing Development 
        Corporation, 429 U.S. 252 (1977).
            (17) Racial profiling is not adequately addressed through 
        suppression motions in criminal cases for two reasons. First, 
        the Supreme Court held, in Whren v. United States, 517 U.S. 806 
        (1996), that the racially discriminatory motive of a police 
        officer in making an otherwise valid traffic stop does not 
        warrant the suppression of evidence. Second, since most stops 
        do not result in the discovery of contraband, there is no 
        criminal prosecution and no evidence to suppress.
            (18) A comprehensive national solution is needed to address 
        racial profiling at the Federal, State, and local levels. 
        Federal support is needed to combat racial profiling through 
        specialized training of law enforcement agents, improved 
        management systems, and the acquisition of technology such as 
        in-car video cameras.
    (b) Purposes.--The purposes of this Act are--
            (1) to enforce the constitutional right to equal protection 
        of the laws, pursuant to the Fifth Amendment and section 5 of 
        the 14th Amendment to the Constitution of the United States;
            (2) to enforce the constitutional right to protection 
        against unreasonable searches and seizures, pursuant to the 
        Fourth Amendment to the Constitution of the United States;
            (3) to enforce the constitutional right to interstate 
        travel, pursuant to section 2 of article IV of the Constitution 
        of the United States; and
            (4) to regulate interstate commerce, pursuant to clause 3 
        of section 8 of article I of the Constitution of the United 
        States.

                TITLE I--PROHIBITION OF RACIAL PROFILING

SEC. 101. PROHIBITION.

    No law enforcement agent or law enforcement agency shall engage in 
racial profiling.

SEC. 102. ENFORCEMENT.

    (a) Remedy.--The United States, or an individual injured by racial 
profiling, may enforce this title in a civil action for declaratory or 
injunctive relief, filed either in a State court of general 
jurisdiction or in a district court of the United States.
    (b) Parties.--In any action brought pursuant to this title, relief 
may be obtained against--
            (1) any governmental unit that employed any law enforcement 
        agent who engaged in racial profiling;
            (2) any agent of such unit who engaged in racial profiling; 
        and
            (3) any person with supervisory authority over such agent.
    (c) Nature of Proof.--Proof that the routine or spontaneous 
investigatory activities of law enforcement agents in a jurisdiction 
have had a disparate impact on racial, ethnic, or religious minorities 
shall constitute prima facie evidence of a violation of this title.
    (d) Attorney's Fees.--In any action or proceeding to enforce this 
title against any governmental unit, the court may allow a prevailing 
plaintiff, other than the United States, reasonable attorney's fees as 
part of the costs, and may include expert fees as part of the 
attorney's fee.

    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

SEC. 201. POLICIES TO ELIMINATE RACIAL PROFILING.

    (a) In General.--Federal law enforcement agencies shall--
            (1) maintain adequate policies and procedures designed to 
        eliminate racial profiling; and
            (2) cease existing practices that encourage racial 
        profiling.
    (b) Policies.--The policies and procedures described in subsection 
(a)(1) shall include--
            (1) a prohibition on racial profiling;
            (2) the collection of data on routine investigatory 
        activities sufficient to determine if law enforcement agents 
        are engaged in racial profiling and submission of that data to 
        the Attorney General;
            (3) independent procedures for receiving, investigating, 
        and responding meaningfully to complaints alleging racial 
        profiling by law enforcement agents of the agency;
            (4) procedures to discipline law enforcement agents who 
        engage in racial profiling; and
            (5) such other policies or procedures that the Attorney 
        General deems necessary to eliminate racial profiling.

 TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE AND LOCAL 
                        LAW ENFORCEMENT AGENCIES

SEC. 301. POLICIES REQUIRED FOR GRANTS.

    (a) In General.--An application by a State or governmental unit for 
funding under a covered program shall include a certification that such 
unit and any agency to which it is redistributing program funds--
            (1) maintains adequate policies and procedures designed to 
        eliminate racial profiling; and
            (2) has ceased any existing practices that encourage racial 
        profiling.
    (b) Policies.--The policies and procedures described in subsection 
(a) shall include--
            (1) a prohibition on racial profiling;
            (2) the collection of data on routine investigatory 
        activities sufficient to determine if law enforcement agents 
        are engaged in racial profiling, and submission of that data to 
        the Attorney General;
            (3) independent procedures for receiving, investigating, 
        and responding meaningfully to complaints alleging racial 
        profiling by law enforcement agents;
            (4) procedures to discipline law enforcement agents who 
        engage in racial profiling; and
            (5) such other policies or procedures that the Attorney 
        General deems necessary to eliminate racial profiling.
    (c) Noncompliance.--If the Attorney General determines that a 
grantee is not in compliance with conditions established under this 
title, the Attorney General shall withhold the grant, in whole or in 
part, until the grantee establishes compliance. The Attorney General 
shall provide notice regarding State grants and opportunities for 
private parties to present evidence to the Attorney General that a 
grantee is not in compliance with conditions established under this 
title.

SEC. 302. BEST PRACTICES DEVELOPMENT GRANTS.

    (a) Grant Authorization.--The Attorney General may make grants to 
States, law enforcement agencies and other governmental units, Indian 
tribal governments, or other public and private entities, to develop 
and implement best practice devices and systems to ensure the racially 
neutral administration of justice.
    (b) Uses.--The funds provided pursuant to subsection (a) may be 
used to support--
            (1) development and implementation of training to prevent 
        racial profiling and to encourage more respectful interaction 
        with the public;
            (2) acquisition and use of technology to facilitate the 
        collection of data regarding routine investigatory activities 
        in order to determine if law enforcement agents are engaged in 
        racial profiling;
            (3) acquisition and use of technology to verify the 
        accuracy of data collection, including in-car video cameras and 
        portable computer systems;
            (4) development and acquisition of early warning systems 
        and other feedback systems that help identify officers or units 
        of officers engaged in or at risk of racial profiling or other 
        misconduct, including the technology to support such systems;
            (5) establishment or improvement of systems and procedures 
        for receiving, investigating, and responding meaningfully to 
        complaints alleging racial, ethnic, or religious bias by law 
        enforcement agents; and
            (6) establishment or improvement of management systems to 
        ensure that supervisors are held accountable for the conduct of 
        their subordinates.
    (c) Equitable Distribution.--The Attorney General shall ensure that 
grants under this section are awarded in a manner that reserves an 
equitable share of funding for small and rural law enforcement 
agencies.
    (d) Authorization of Appropriations.--The Attorney General shall 
make available such sums as are necessary to carry out this section 
from amounts appropriated for programs administered by the Attorney 
General.

  TITLE IV--DEPARTMENT OF JUSTICE REPORTS ON RACIAL PROFILING IN THE 
                             UNITED STATES

SEC. 401. ATTORNEY GENERAL TO ISSUE REPORTS ON RACIAL PROFILING IN THE 
              UNITED STATES.

    (a) Reports.--
            (1) In general.--Not later than 2 years after the enactment 
        of this Act, and each year thereafter, the Attorney General 
        shall submit to Congress a report on racial profiling by 
        Federal, State, and local law enforcement agencies in the 
        United States.
            (2) Scope.--The reports issued pursuant to paragraph (1) 
        shall include--
                    (A) a summary of data collected pursuant to 
                sections 201(b)(2) and 301(b)(2) and any other reliable 
                source of information regarding racial profiling in the 
                United States;
                    (B) the status of the adoption and implementation 
                of policies and procedures by Federal law enforcement 
                agencies pursuant to section 201;
                    (C) the status of the adoption and implementation 
                of policies and procedures by State and local law 
                enforcement agencies pursuant to sections 301 and 302; 
                and
                    (D) a description of any other policies and 
                procedures that the Attorney General believes would 
                facilitate the elimination of racial profiling.
    (b) Data Collection.--Not later than 6 months after the enactment 
of this Act, the Attorney General shall by regulation establish 
standards for the collection of data under sections 201(b)(2) and 
301(b)(2), including standards for setting benchmarks against which 
collected data shall be measured. Such standards shall result in the 
collection of data, including data with respect to stops, searches, 
seizures, and arrests, that is sufficiently detailed to determine 
whether law enforcement agencies are engaged in racial profiling and to 
monitor the effectiveness of policies and procedures designed to 
eliminate racial profiling.
    (c) Public Access.--Data collected under sections 201(b)(2) and 
301(b)(2) shall be available to the public.

SEC. 402. LIMITATION ON USE OF DATA.

    Information released pursuant to section 401 shall not reveal the 
identity of any individual who is detained or any law enforcement 
officer involved in a detention.

           TITLE V--DEFINITIONS AND MISCELLANEOUS PROVISIONS

SEC. 501. DEFINITIONS.

    In this Act:
            (1) Covered program.--The term ``covered program'' means 
        any program or activity funded in whole or in part with funds 
        made available under--
                    (A) the Edward Byrne Memorial State and Local Law 
                Enforcement Assistance Programs (part E of title I of 
                the Omnibus Crime Control and Safe Streets Act of 1968 
                (42 U.S.C. 3750 et seq.));
                    (B) the ``Cops on the Beat'' program under part Q 
                of title I of the Omnibus Crime Control and Safe 
                Streets Act of 1968 (42 U.S.C. 3796dd et seq.), but not 
                including any program, project, or other activity 
                specified in section 1701(d)(8) of that Act (42 U.S.C. 
                3796dd(d)(8)); and
                    (C) the Local Law Enforcement Block Grant program 
                of the Department of Justice, as described in 
                appropriations Acts.
            (2) Governmental unit.--The term ``governmental unit'' 
        means any department, agency, special purpose district, or 
        other instrumentality of Federal, State, local, or Indian 
        tribal government.
            (3) Law enforcement agency.--The term ``law enforcement 
        agency'' means a Federal, State, local, or Indian tribal public 
        agency engaged in the prevention, detection, or investigation 
        of violations of criminal, immigration, or customs laws.
            (4) Law enforcement agent.--The term ``law enforcement 
        agent'' means any Federal, State, local, or Indian tribal 
        official responsible for enforcing criminal, immigration, or 
        customs laws, including police officers and other agents of 
        Federal, State, and local law enforcement agencies.
            (5) Racial profiling.--The term ``racial profiling'' means 
        the practice of a law enforcement agent relying, to any degree, 
        on race, ethnicity, religion, or national origin in selecting 
        which individuals to subject to routine or spontaneous 
        investigatory activities, or in deciding upon the scope and 
        substance of law enforcement activity following the initial 
        investigatory procedure, except when there is trustworthy 
        information, relevant to the locality and timeframe, that links 
        persons of a particular race, ethnicity, religion, or national 
        origin to an identified criminal incident or scheme.
            (6) Routine or spontaneous investigatory activities.--The 
        term ``routine or spontaneous investigatory activities'' means 
        the following activities by law enforcement agents: interviews; 
        traffic stops; pedestrian stops; frisks and other types of body 
        searches; consensual or nonconsensual searches of the persons 
        or possessions (including vehicles) of motorists or 
        pedestrians; inspections and interviews of entrants into the 
        United States that are more extensive than those customarily 
        carried out; immigration related workplace investigations; and 
        such other types of law enforcement encounters compiled by the 
        FBI and the Justice Department's Bureau of Justice Statistics.

SEC. 502. SEVERABILITY.

    If any provision of this Act or the application of such provision 
to any person or circumstance is held to be unconstitutional, the 
remainder of this Act and the application of the provisions of such to 
any person or circumstance shall not be affected thereby.

SEC. 503. SAVINGS CLAUSE.

    Nothing in this Act shall be construed to limit legal or 
administrative remedies under section 1979 of the Revised Statutes of 
the United States (42 U.S.C. 1983), section 210401 of the Violent Crime 
Control and Law Enforcement Act of 1994 (42 U.S.C. 14141), the Omnibus 
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3701 et seq.), 
and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
                                 <all>
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