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Now that Congress has returned from its summer recess, it should take up an issue that the Bush administration prominently addressed in June: racial profiling. Declaring that it was fulfilling the president’s campaign pledge to end profiling, the administration “banned” the discredited practice by issuing a policy “guideline.” Unfortunately, the guideline neither bans profiling nor keeps the president’s promise. It can serve as a first step, but racial profiling will end only if Congress steps in to complete the job. Racial profiling — using racial or ethnic characteristics like skin color as one factor among others to decide who is suspicious enough to warrant law enforcement attention — is neither a simple nor an easy issue. Many Americans believe that skin color or ethnic features help police to assess the risk that someone who officers know nothing about is involved in crime. In the 1980s and 1990s, police officers in many jurisdictions were taught to use racial profiling to decide who to stop, search and question in airports and on highways to find drug couriers. In the post-Sept. 11 world, the same reasoning is being applied to anti-terrorism profiling: The suicide hijackers of al-Qaida were young Arab men; therefore, we need to stop, search and investigate young Arab men. It’s just common sense, right? Fortunately, we know much more about the use of racial profiling now than we did just a few years ago. And given what we know, using racial profiling would be profoundly unwise. Put bluntly, using racial profiling will harm our anti-terrorism efforts, not help them. It is a mistake we simply cannot afford to make. The striking thing we’ve learned most recently is that using race or ethnicity as one factor among many in deciding who is more likely to be a criminal simply doesn’t work. For example, the Office of the Attorney General of the State of New York has examined stop-and-frisk data from New York City. Its study, which included data on more than 170,000 stops and frisks conducted over 15 months, proved several important points. First, African-Americans and Latinos were clearly “overstopped” — they experienced far more stops and frisks than their numbers in New York would have predicted — and whites were “understopped.” Second, the “overstops” were not the result of higher crime rates in minority neighborhoods, or of citizens calling in descriptions of perpetrators who happened to be black or brown. Only one factor could explain who was getting stopped: racial and ethnic appearance. But the third thing the study revealed was even more important. When police used race or ethnicity as one factor — not the only factor, but just one factor among many — to decide who to stop, their “hit rate” (the rate at which police succeeded in finding dope or guns or in making arrests) was lower than when they made no use of race. The hit rates for stops and frisks of blacks and Latinos (10.5 percent and 11.6 percent, respectively) was actually lower than the hit rate for stops and frisks for whites (12.6 percent) in which race played no role. This statistically significant difference was, of course, exactly the opposite of what believers in racial profiling predict. That is, racial profiling doesn’t help police; in fact, it’s like tying weights around their ankles when they have to chase crooks. And a number of other studies in different jurisdictions — in North Carolina, in New Jersey, even at customs checkpoints in international airports in the United States — show the same pattern. How does this play out now in the war against terrorism? First, note that observation of suspicious behavior is the gold standard of policing. Veteran police officers will tell you that catching bad guys is all about behavior, not appearance. Using race takes law enforcement eyes off what counts, making them less effective. Second, when we use racial or ethnic appearance as a clue, we enlarge our suspect pool. We take people whose behavior is not really remarkable and, because they have an Arab surname or appearance, we add them to those we regard as suspicious. All of those in the suspect category then have to be stopped, questioned, searched and investigated, even when their behavior would not have pointed to any reason to do this. This spreads our finite investigative resources too thin. It’s like looking for a needle in a haystack, but adding more hay. Third, using Arab or Middle Eastern ethnicity in a profile will badly damage our ability to gather crucial intelligence. If we think that there are al-Qaida sleeper cells on our soil made up of Middle Eastern men, the best — in fact, virtually the only — source for intelligence on who these people might be will be members of Middle Eastern communities. They will be the ones to notice people who seem out of place or suspicious. If we use a profile that singles out Arab and Middle Eastern men, we implicitly treat all of them as suspects. And that produces not partnerships with law enforcement, but fear. People who are afraid simply won’t come forward with information as often as they might if we treated them as our partners. Thus it seems an appropriate time for the Bush administration to address and end racial and ethnic profiling: It’s a failed policy that has never worked as advertised and will actually harm our efforts to be safe from al-Qaida and other terrorists. Unfortunately, the administration’s policy guideline will not end this discredited practice and, in fact, leaves plenty of room for it to continue. Start with what is positive in the guideline. It defines racial profiling as the use of race in making routine law enforcement decisions, except when race is part of the description of a known suspect. This makes sense. There is absolutely nothing wrong with using the race of a perpetrator as part of a description. If witnesses describe a criminal as male, 6 feet tall, 190 pounds, black, wearing dark sweats and a Redskins T-shirt, the police should broadcast the man’s race along with all the other information. Race is a highly visible, immutable characteristic that identifies particular people better than easily changed aspects of appearance like clothing. The guideline allows the use of appearance to describe a known suspect, but correctly says that race should not be used to predict behavior. This definition shows that the president understands that racial profiling is a real national problem that must stop. But the remainder of the new guideline leaves much to be desired. First, it is only a guideline — not a law, or even an executive order. While the administration has said that the president expects federal agencies to follow it, he has clearly left it up to them, rather than ordering it. Second, it contains neither an enforcement mechanism nor any method for tracking whether agencies are complying. By means of comparison, legislation in almost a third of the states has required that law enforcement do something that enables us to know whether law enforcement actually stops using profiling, usually by requiring the collection of some basic statistical information on police stops. Third, the president’s guideline applies only to federal agencies. It does nothing to address these practices in the state and local settings, where the overwhelming number of routine police-citizen encounters occur. This leaves the great bulk of the profiling problem completely unaddressed. Fourth, and most important, the guideline contains overbroad exceptions for national security and immigration purposes. Any use of racial or ethnic characteristics by law enforcement that could be labeled as important to national security remains unaffected. Given the administration’s willingness today to argue that so many executive branch decisions are matters of national security, and its strong penchant for secrecy in general that preceded Sept. 11, 2001, the national security exception is literally limitless. The inclusion of the immigration exception is equally troubling, since it is in this very area of federal law enforcement, investigation and policy that the federal government has shown its greatest and most frequent willingness to use profiling: to “voluntarily” question thousands of young Arab and Muslim “nonsuspects,” to incarcerate hundreds of Muslims and Middle Easterners on the most trivial immigration violations and to selectively deport Middle Eastern visa violators, when hundreds of thousands of people from other regions have committed the same visa violations. All of this makes the release of the guideline a real opportunity for Congress to step in and complete the task. Congress should use the carrot-and-stick approach of the End Racial Profiling Act, sponsored in the last Congress by Sen. Russell Feingold, D-Wis., and Rep. John Conyers Jr., D-Mich. The bill begins in exactly the same place as the president’s policy guideline: It defines profiling as using race in law enforcement decision making, except when race is part of a suspect’s description. But the bill goes on to create a real ban by attaching conditions to federal law enforcement spending: Police departments that want these funds would have to end the practice and collect statistics to track stop-and-search activity. The bill would also enable citizens to sue when they have been subjected to a pattern of profiling, and it makes additional funds available to police departments to bolster their efforts to create accountability on the issue: training, in-car video cameras, statistical collection systems and other accountability measures. Most important, Congress must question the critical assumption made by the administration’s policy guideline: that we should use race and ethnicity to make national security decisions. We shouldn’t. Perhaps we could afford to be inaccurate in our struggle against drug couriers and miss a few, but we can’t afford to use racial profiling now and miss even one terrorist. Even if the administration’s guideline does not fulfill President Bush’s campaign promise of ending racial profiling, it can be the beginning of a national solution. Now is the time for the Congress to step up and complete the job. David A. Harris is a Soros Senior Justice Fellow and the author ofProfiles in Injustice: Why Racial Profiling Cannot Work” ( The New Press, 2002). He is the Balk Professor of Law and Values at the University of Toledo in Ohio.

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