Why can't President Obama and Attorney General Eric Holder do more to ban racial profiling in the United States?
Surely, more so than any of their predecessors, they can understand the injustice and humiliation racial profiling victims feel when they are treated as suspect because of the color of their skin.
Yet, after four years in office, they have made no revisions to the Justice Department guidance regarding the use of race in federal law enforcement issued by Attorney General John Ashcroft in 2003. Ashcroft's guidance was deficient: though it expressly banned racial profiling by federal law enforcement agencies, it left broad exemptions for national security and border integrity investigations.
The Obama administration's failure to close these loopholes has given the FBI a green light to implement a program that uses crass stereotypes about what types of crimes racial and ethnic groups commit to justify mapping entire communities based on race and ethnicity. The FBI has argued that racial mapping is no different than a local police chief putting push pins on a map to see where different crimes have occurred. But the FBI is mapping people, with no evidence anyone within the communities it tracks has committed any crime at all. This is racial profiling on a nationwide scale.
When the ACLU released the FBI records detailing this abusive program (which we obtained through requests under the Freedom of Information Act), we wrote to Holder. We explained that because the American criminal justice system is founded on the idea that government must have probable cause to effect a constitutional arrest, individualized suspicion of criminal activity, not guilt by association, is the rule. Holder never responded.
Ashcroft prohibited the use of race "to any degree" in most spontaneous law enforcement decisions and limited the use of race in specific investigations to "trustworthy information ... that links persons of a particular race or ethnicity to an identified criminal incident, scheme, or organization.
The only explanation we received was a letter from the FBI that referenced the Ashcroft guidance and earlier guidance from 2008, before Obama took office, to argue that it was acting within federal regulations.
The FBI suggests its mapping program was designed to protect racial communities, But it is hard to see how tracking the growth of the Black community in Georgia would protect it, for example, from so-called "Black separatists," when overwhelming statistics from the Justice Department revealed that blacks are mostly victimized by whites in hate crimes.
Yet, based on the information the ACLU gathered, the FBI is not tracking white communities to the same degree. (But even that, too is wrong because it undermines individualized suspicion as the basis for investigation.) In contrast, FBI records don't show any acts of violence by Black separatist groups -- against anyone -- for more than 20 years.
In a more revealing line, the FBI told us that mapping an entire community of people based only on their race was "no different than limiting a manhunt to the description given by an eyewitness." This flimsy argument shows the constitutional damage of racial profiling - that if one person of a particular race commits a crime, all persons of that race should be treated as suspect. Guilt by association is antithetical to American values.
It is not just the FBI that has embraced racial profiling. Behavioral detection officers with the Transportation Security Administration (TSA) recently came to the ACLU to report that colleagues at Boston's Logan Airport were racially profiling airline passengers in an effort to boost arrests for drug and immigration violations. TSA officers were also previously caught profiling at airports in Newark and Honolulu. What could be the purpose of identifying such communities on a map except to treat them differently when the FBI is making investigative decisions?
It is long past time for Obama and Holder to end this humiliating, ineffective, and unlawful practice. The Justice Department guidance regarding the use of race should be amended in the following ways:
• Close the loophole for national security and border integrity investigation. It also sends the wrong message to all law enforcement officers that racial profiling is sometimes okay.
• Prohibit profiling based on religion and national origin, which is no less an affront to the Constitution than profiling based on race and ethnicity.
• Explicitly state that the ban on racial profiling applies to data collection, intelligence activities, assessments and predicated investigations. Intelligence practices like racial mapping threaten entire communities.
• Include enforceable standards. The current guidance has no enforcement mechanism.
• Expand the racial profiling ban to all state and local law enforcement agencies that receive federal funding.
These reforms are long overdue, and will only make law enforcement more effective, and our communities safer.