Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended. In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.
The basic criticism of racial profiling is simple. A police stop for “Driving while Black” or “Driving while Brown” was unaccaptable as well as unlawful. Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities. Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come. (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect data on traffic stops. A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.
Were the promises to end racial profiling kept? Apparently not. A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.
What happened? The persistence of racial profiling should be no real surprise. As we all know, law enforcement is difficult to reform. Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics, for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.” Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.
Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement. The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement. The result was that the challenge to racial profiling ebbed.
It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.
And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement. Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants. This is a particular problem in the Southwest in the U.S./Mexico border region. The Supreme Court has sanctioned this practice. In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop. Since that decision, “Mexican appearance” has come to dominate immigration enforcement. Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement. Click here for analysis of the Brignoni-Ponce decision.
The bottom line is this. Racial profiling remains central to law enforcement in the United States. Is there the political will to eradicate racial profiling? Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?