Even before the Justice Department announced its new racial profiling guidelines, outgoing Attorney General Eric Holder was proclaiming that the “rigorous new standards and robust safeguards” would “help end racial profiling, once and for all.” But now the new guidelines are out and even though they are broader than their Bush-era precursors it’s clear they won’t end racial profiling in federal law enforcement, much less at the state and local level, where the vast majority of policing takes place.
It took the Justice Department — and Holder — more than five years just to reach this modest new point along the path toward race-neutral police tactics. Civil rights advocates I spoke with on Monday, both those who praised the new policy and those who lamented its limitations, all agreed that profiling was one of Holder’s most heartfelt and consistent priorities as the nation’s chief law enforcement official. That explains why the Attorney General on Tuesday, speaking in Memphis, made a personal pitch to state and local police. “[L]ook to this new federal guidance as a model,” Holder pleaded, and develop your “own rigorous policies” to end racial profiling.
But so far it has been a one-sided conversation between federal and state authorities. While civil rights groups have been eager to offer their perspectives on the new rules, police officials around the nation have been universally silent as Justice rolled out its new policy. If you don’t feel pushed, why push back? At this moment, regardless of the intensity of the attorney general’s pleas, there is no public indication that county sheriffs and city police chiefs feel pushed in any meaningful way to reform their own local profiling policies.
What exactly do the new rules require of federal officials? Here’s the summary from the Justice Department:
In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree, except that officers may rely on the listed characteristics in a specific suspect description. This prohibition applies even where the use of a listed characteristic might otherwise be lawful.
The addition of “gender, national origin, religion, sexual orientation, and general identity” is no small thing, the ACLU’s Laura Murphy says. Expanding the prohibited categories — especially to include “national origin” — came about only after intense discussion within the administration, she says. But these internal discussions, underway for years before the death of Michael Brown in August focused the nation’s attention again on racial justice, also restricted the scope of the guidelines.
Like the 2003 guidelines, issued by then-Attorney General John Ashcroft, the new rules apply to most federal law enforcement agencies (including the FBI, the DEA, the ATF and US Marshals, for example) but not to Secret Service officers, TSA officials at airports, or Border Patrol officials working near our borders. Those agencies still may engage in racial profiling. Nor does the new policy appear to prohibit the federal “mapping” of American cities, a sort of collective racial profiling, that civil rights advocates believe is based on little more than hoary stereotypes.
Here, from the guidelines, is how the feds describe the border and national security exemptions:
In conducting all activities other than routine or spontaneous law enforcement activities, Federal law enforcement officers may consider race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity only to the extent that there is trustworthy information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified criminal incident, scheme, or organization, a threat to national or homeland security, a violation of Federal immigration law, or an authorized intelligence activity.
In order to rely on a listed characteristic, law enforcement officers must also reasonably believe that the law enforcement, security, or intelligence activity to be undertaken is merited under the totality of the circumstances, such as any temporal exigency and the nature of any potential harm to be averted. This standard applies even where the use of a listed characteristic might otherwise be lawful.
But the biggest loophole is this: little in the new guidelines addresses racial profiling where it is likely to occur most — at the state or local level of policing. The new initiative applies only to those state and local police officers who are working on federal crime task forces. This is progress, federal officials claim, because it means at least some local cops will be subject to new profiling restrictions. But to the average officer on the street, or more precisely to their chiefs, the new rules are mere suggestions with no enforcement mechanism.
This may explain why the ballyhooed federal announcement was met with a such a pronounced shrug by key law enforcement organizations. Neither the National Sheriffs’ Association nor the International Association of Chiefs of Police had a statement prepared Monday in response to the new federal rules. Officials at neither group responded to a request for even the most basic comment on the federal initiative. One spokesman for a local police department called me back to tell me he couldn’t even find the new Justice Department guidelines online.
The ACLU’s Murphy says the Justice Department could have made compliance with the new rules a condition for federal funding, but didn’t because key federal officials do not believe they have the legal authority to impose such conditions. “We believe they have the authority to attach conditions to the funding,” she told me. But other advocates are not so sure — especially as the new rules relate to the actions of Homeland Security officials.
The Justice Department did not respond to a request for clarification on this point. But the folks at the Leadership Conference on Civil Rights, which has closely tracked this issue for years, had plenty to say about the federal rollout. Here is the link to their statement Monday. And here is the link to their statement in 2003 when President George W. Bush announced the first racial profiling guidelines. They are virtually identical, reflecting how far the federal government has come, and how far it still has to go, to ending racial profiling “once and for all.”