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By Braden Goyette
October 7, 2010
Caption : Racial profiling is so widely reported that sometimes law enforcement agencies themselves acknowledge it in statistics, but a new report shows how we can curb it.     

In 2004, 32 million people reported that they were unfairly singled out by law enforcement because of their race, according to a new Amnesty International report. That number is roughly equivalent to the entire population of Canada.

Statistics demonstrate that minorities are disproportionately targeted by police are plentiful—some of them even compiled by police departments themselves (PDF). So even though many are aware it's happening, and happening all over the country, there seems to be little effort to curb the practice.

Part of the reason that so little is done about racial profiling is that the burden of proof falls on the victims, something that’s nearly impossible to do in situations of one-on-one harassment, where third party witnesses or material evidence are often lacking.

The Rights Working Group, a coalition of human rights and civil liberties groups that formed after 9/11, released a report last week that documents the experience and legislative context for America's racial profiling epidemic.

Most states do not have laws that prohibit racial profiling by law enforcement. Only 29 states even mention racial profiling in their legislation. Of the 29, only 19 states require their law enforcement agencies to collect data on the traffic stops they conduct, and these reporting requirements vary wildly from state to state. Further, five of the states that prohibit racial profiling only ban the use of race as the sole factor for initiating a stop, rather than banning its use as any factor in determining whom to stop.

Constitutional safeguards against racial profiling exist, but have been largely drained of substance by other legislation, notably a Supreme Court decision that enables the use of traffic violations as a pretext to stop people for other reasons. Traffic laws are complex enough that nearly anyone will break one if officers have the motivation to follow them for long enough.

The report does a good job of detailing the lived experience of profiling on people's lives, integrating testimonials on profiling from six hearings held across the country, organized in collaboration with all kinds of civil liberties, immigrant rights, and community groups. It doesn't just focus on documenting that profiling happens on a large scale, but also the ways in which profiling changes the texture and quality of people's everyday lives when it becomes a chronic, recurring problem, and how it makes communities less safe on the whole.

The Rights Working Group also made a miniature documentary to bring out this lived experience more vividly:

Face the Truth: Racial Profiling Across America from Breakthrough on Vimeo.

The report covers the extension of racial profiling into immigration enforcement and national security over the past ten years, as well as in neighborhood policing, and the legal provisions that have supported that growth.

Arizona’s controversial immigration law, SB 1070, sent shockwaves across the country for proposing to allow officers to detain anyone who they suspected of being an illegal immigrant without cause. But there were already legal precedents for this kind of law in place, which made it more difficult to totally defeat it in the courts.

In 2002, Homeland Security instituted something called the 287(g) program, which leaves the door open to racial profiling by empowering local law enforcement officers to enforce federal immigration law without giving them clear guidelines.

The report also stresses that profiling not only erodes people's quality of life on a fundamental level, it's counterintuitive to the goals of policing.

All of these programs damage the safety of the entire community. If community members fear that reporting crimes or assisting the police can lead to immigration investigations, they become unwilling to work with law enforcement. When people do not cooperate with the authorities, all communities are less safe.

The authors of the report argue that using minor infractions to target people based on race means you’re spending time and money detaining and punishing people who don’t necessarily pose a threat to anyone’s safety.

The report builds up to a list of concrete policy recommendations for local, state, and federal government, the Department of Justice, and Homeland Security. First, they say that Obama needs to take a clear, strong position against racial profiling, and urge congress to pass the End Racial Profiling Act of 2010, a bill introduced in July of this year that wouldestablish a clear legal prohibition on racial profiling andmandate police training about the issue.Similar bills were introduced in 2001, 2004, and 2007, and each one kicked around congress without passing into law. Without strong backing from the White House, the same thing is likely to happen again.

The report also recommends that Homeland Security scrap the 287(g) program and other programs that give local police license to interpret and enforce national immigration policy, such as the Secure Communities Initiative and Criminal Alien Program. The Department of Justice should reverse legislative precedents from the past ten years enabling racial profiling in border security. And at all levels of government, they call for more oversight of law enforcement officers, the creation of confidential complaint mechanisms, and urge mandatory data collection on police stops by race and ethnicity—a pragmatic step forward that would allow community members to draw attention to what’s happening and push for stronger legislation to deal with it on the local level. Local governments also don’t have to cooperate with the 287(g) program or initiatives like it and should choose to opt out.

Granted, legislation isn't the sole driving force between profiling, something the report’s authors recognize. As ACLU staff attorney Peter Bibring said during one of the hearings, “The problem with racial profiling lies in its pervasiveness. It’s not just about a few bad actors or a bad policy you can point to or bad training. It’s a problem that pervades law enforcement and our criminal justice system at every level.”

But as the report shows, there are currently little to no legal consequences for it, and creating legal consequences for the problem will at least begin to put disincentives in place that could limit the practice’s reach, where the law currently enables it. It could give the parts of the constitution that emphasize equality before the law some of their substance back

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